Petition for Writ of Certiorari — Jonathan Roberts, et al., Petitioners v. James V. McDonald, Commissioner, New York State Department of Health, et al.
Supreme Court briefFeb 8, 2023
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No. _________
In The
Supreme Court of the United States
____________________
Jonathan Roberts and Charles Vavruska,
Petitioners,
v.
James V. McDonald, in his official
capacity as Commissioner for New York State
Department of Health; New York City
Department of Health and Mental Hygiene,
____________________
Respondents.
On Petition for Writ of Certiorari to
the U.S. Court of Appeals for the Second Circuit
____________________
PETITION FOR WRIT OF CERTIORARI
____________________
WENCONG FA
Counsel of Record
CALEB R. TROTTER
Pacific Legal Foundation
555 Capitol Mall, Suite 1290
Sacramento, California 95814
Telephone: (916) 419-7111
WFa@pacificlegal.org
Counsel for Petitioners
i
Questions Presented
During the COVID-19 pandemic, the U.S. Food
and Drug Administration granted emergency
approval for lifesaving oral antiviral treatments.
Facing a severe shortage of these treatments, the
State of New York and New York City issued
directives instructing medical providers to prioritize
treatments to individuals on the basis of race.
Petitioners are New York City residents who are
disadvantaged by the directives’ racial criteria.
The Second Circuit held that being disadvantaged
for lifesaving treatments on account of race was not
an “actual or imminent” injury. It required Petitioners
to show they were denied treatment on the basis of
race. Because the oral antiviral treatments must be
taken within five days of symptom onset, the lower
court’s decision effectively shields the government’s
race-based directives from judicial review.
The questions presented are:
1. Whether plaintiffs’ injury is imminent where it
flows from a predictable course of events that results
from the defendant’s conduct.
2. Whether the Second Circuit’s ruling conflicts
with Ne. Fla. Chapter of Assoc. Gen. Contractors of
Am. v. City of Jacksonville, Fla., 508 U.S. 656, 666
(1993), which holds that the “injury in fact in an equal
protection case” involving racial discrimination “is the
denial of equal treatment resulting from the
imposition of the barrier, not the ultimate inability to
obtain the benefit.”
ii
Parties to the Proceedings
Petitioners are Jonathan Roberts and Charles
Vavruska.
Respondents are James V. McDonald, in his
official capacity as Commissioner, New York State
Department of Health; and the Department of Health
and Mental Hygiene of the City of New York.
Pursuant to Supreme Court Rule 35.3, James V.
McDonald is substituted for former Commissioner
Mary T. Bassett, who was a Defendant-Appellee in the
court below.
Related Proceedings
United States Court of Appeals for the Second
Circuit: Roberts v. Bassett, 22-622, 2022 WL 16936210
(Nov. 15, 2022).
United States District Court for the Eastern
District of New York: Roberts v. Bassett, 22-cv-710,
2022 WL 785167 (Mar. 15, 2022).
iii
Table of Contents
Questions Presented .................................................... i
Parties to the Proceedings .......................................... ii
Related Proceedings.................................................... ii
Table of Authorities ................................................... vi
Petition for a Writ of Certiorari ................................. 1
Opinions Below ........................................................... 1
Statement of Jurisdiction ........................................... 1
Constitutional Provision and Directives At Issue ..... 1
Introduction ................................................................ 1
Statement of the Case ................................................ 4
A.
The Government’s Race-Based Directives
for Allocating COVID-19 Treatments ........ 4
i.
The Omicron Variant and Severe
Shortage of COVID-19 Treatments........ 4
ii.
Respondents’ Race-Based Directives for
Allocating COVID-19 Treatments.......... 6
B.
Petitioners Jonathan Roberts and Charles
Vavruska ..................................................... 8
C.
Proceedings Below ...................................... 9
Reasons for Granting the Petition ........................... 13
I.
The Second Circuit Diverges From Three
Other Circuits on Whether a Plaintiff’s Injury
Is Imminent Where It Flows From a
Predictable Course of Events That Results
From Defendant’s Conduct ........................... 13
II.
The Second Circuit’s Decision Is Inconsistent
with This Court’s Precedents ....................... 17
iv
A.
Plaintiffs Suffer an Imminent Injury
Where the Injury Follows from a
Predictable Chain of Events ..................... 17
B.
Plaintiffs Are Injured by the Imposition of
a Race-Based Barrier and Not the Ultimate
Denial of a Benefit .................................... 19
III. This Case Presents a Recurring Issue of
Nationwide Importance ................................ 21
Conclusion ................................................................. 24
Appendix
Opinion of Court of Appeals (Nov. 15, 2022) ........... 1a
Order of District Court (Mar. 15, 2022) ................. 10a
Complaint for Declaratory and Injunctive Relief
(dated Feb. 8, 2022) ........................................... 35a
Exhibit A to Complaint (COVID-19 Oral Antiviral
Treatments Authorized and Severe Shortage of
Oral Antiviral and Monoclonal Antibody
Treatment Products, Dec. 27, 2021) ................. 48a
Exhibit B to Complaint (Prioritization of Anti-SARSCoV-2 Monoclonal Antibodies and Oral Antivirals
for the Treatment of COVID-19 During Times of
Resource Limitations) ....................................... 57a
Exhibit C to Complaint (COVID-19 Oral Antiviral
Treatments Authorized and Severe Shortage of
Oral Antiviral and Monoclonal Antibody
Treatment Products, Dec. 27, 2021,
HAN #39) ........................................................... 61a
Declaration of Jonathan Roberts in support of
Plaintiffs’ Motion for Preliminary Injunction
(signed Feb. 18, 2022)........................................ 71a
v
Declaration of Charles Vavruska in support of
Plaintiffs’ Motion for Preliminary Injunction
(signed Feb. 17, 2022)........................................ 74a
Declaration of Michelle Morse in opposition to
Plaintiffs’ Motion for Preliminary Injunction
(dated Feb. 25, 2022) ......................................... 77a
Declaration of Eugene Heslin in opposition to
Plaintiffs’ Motion for Preliminary Injunction
(dated Feb. 25, 2022) ......................................... 88a
Defendant Bassett’s Letter to Court
(dated Mar. 4, 2022) ........................................ 101a
Defendant Bassett’s Letter to Court
(dated Mar. 7, 2022) ........................................ 103a
vi
Table of Authorities
Page(s)
Cases
Attias v. CareFirst, Inc.,
199 F. Supp. 3d 193 (D.D.C. 2016),
reversed by 865 F.3d 620 (D.C. Cir. 2017) ........ 15
Attias v. CareFirst, Inc.,
865 F.3d 620 (D.C. Cir. 2017) ..................... 15, 17
Babbitt v. United Farm Workers Nat.
Union, 442 U.S. 289 (1979) ............................... 19
Baur v. Veneman,
352 F.3d 625 (2d Cir. 2003) ............................... 11
Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) ................................. 3, 14–18
Department of Commerce v. New York,
139 S. Ct. 2551 (2019) ............................. 3, 17, 18
FEC v. Wisconsin Right to Life,
551 U.S. 449 (2007) ........................................... 19
Friends of the Earth, Inc. v. Laidlaw Envtl.
Serv. (TOC), Inc.,
528 U.S. 167 (2000) ........................................... 19
Gratz v. Bollinger,
539 U.S. 244 (2003) ........................................... 21
Grutter v. Bollinger,
539 U.S. 306 (2003) ..................................... 12, 22
Hershell Gill Engineers, Inc. v. Miami-Dade
County, 333 F. Supp. 2d 1305
(S.D. Fla. 2004) .................................................. 21
vii
Jacobson v. Bassett,
22-cv-692 (N.D.N.Y. Apr. 1, 2022) .................... 12
League of United Latin Am. Citizens v.
Perry, 548 U.S. 399 (2006) ................................ 23
McCardell v. U.S. Dep’t of Housing and
Urban Development,
794 F.3d 510 (5th Cir. 2015) ............................. 16
MGM Resorts Int’l Glob. Gaming Dev., LLC
v. Malloy, 861 F.3d 40 (2d Cir. 2017).......... 13, 14
Ne. Fla. Chapter of Assoc. Gen. Contractors
of Am. v. City of Jacksonville,
508 U.S. 656 (1993) ..................................... 19, 20
Parents Involved in Community Schools v.
Seattle School District No. 1,
551 U.S. 701 (2007) ..................................... 20, 21
Remijas v. Neiman Marcus Group,
794 F.3d 688 (7th Cir. 2015) ................. 15, 16, 18
Sierra Club v. Jewell,
764 F.3d 1 (D.C. Cir. 2014) ......................... 14, 15
Sierra Club v. Salazar,
894 F. Supp. 2d 97 (D.D.C. 2012),
reversed by Sierra Club v. Jewell,
764 F.3d 1 (D.C. Cir. 2014) ............................... 14
Susan B. Anthony List v. Dreihaus,
573 U.S. 149 (2014) ........................... 1, 17, 19, 24
Statutes
28 U.S.C. § 1254(1) ................................................... 1
Constitution
U.S. Const. amend. XIV, § 1 ..................................... 1
viii
Other Authorities
Centers for Disease Control, Potential
Rapid Increase of Omicron Variant
Infections in the United States (updated
Dec. 20, 2021), available at
https://www.cdc.gov/coronavirus/2019ncov/science/forecasting/mathematicalmodeling-outbreak.html. ..................................... 5
Emmanuel, E.J., et al., Fair Allocation of
Scarce Medical Resources in the Time of
COVID-19, 2020 N. Engl. J. Med. 2049
(Mar. 23, 2020), https://www.nejm.org/
doi/full/10.1056/nejmsb2005114........................ 22
Galewitz, Phil, Vermont to Give Minority
Residents Preference for COVID
Vaccines, Scientific American
(Apr. 6, 2021) ..................................................... 23
NYC Health, 2022 Health Advisory #28:
Prescribe COVID-19 Therapeutics to
Prevent Severe Disease, Hospitalization,
and Death This Winter (Nov. 4. 2022),
https://www.nyc.gov/assets/doh/downloa
ds/pdf/han/ advisory/2022/prescribecovid-19-therapeutics-this-winter.pdf .............. 23
NYC Health, COVID-19 Data: Trends and
Tools, Long-term Trends, cases by day,
available at https://www1.nyc.gov/
site/doh/covid/covid-19-data-totals.page
(last visited Feb. 7, 2023) .................................... 5
ix
NYC Health, Omicron Variant: NYC Report
for January 13, 2022, available at
https://www1.nyc.gov/assets/doh/downlo
ads/pdf/covid/omicronvariant-report-jan13-22.pdf .............................................................. 5
Utah Dep’t of Health, UDOH announces
changes to risk assessment process for
accessing scarce COVID-19 treatments
(Jan. 21, 2022) ................................................... 22
Wash. Dep’t of Health, Interim-DOH
Guidance on Prioritization for Use of
AntiSARS-CoV-2 Monoclonal Antibodies
(Apr. 18, 2022) ................................................... 22
1
Petition for a Writ of Certiorari
Petitioners Jonathan Roberts and Charles
Vavruska respectfully petition for a writ of certiorari
to review the judgment of the United States Court of
Appeals for the Second Circuit.
Opinions Below
The unpublished decision of the court of appeals is
included in Petitioners’ Appendix (App.) at 1a. The
unpublished decision of the district court is included
in App. 10a.
Statement of Jurisdiction
The judgment of the court of appeals was entered
on November 15, 2022. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
Constitutional Provision
and Directives At Issue
The Fourteenth Amendment provides, in relevant
part, that no state shall “deprive any person of life,
liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, § 1.
The relevant state and city directives are
reproduced in the Petitioners’ Appendix. See App. at
48a–71a.
Introduction
Federal courts have a “virtually unflagging” duty
to hear and decide cases properly before them—and
that duty can hardly be more important than when it
concerns access to lifesaving medical treatment.
Susan B. Anthony List v. Dreihaus, 573 U.S. 149, 167
(2014). Here, both the City and State of New York
2
believe that restricting access to COVID-19 treatment
on the basis of race is necessary to ensure proper
allocation of the drugs’ supply. Yet the lower court’s
ruling prevents plaintiffs from challenging that
restriction until they first contract COVID-19, are
denied treatment because of the government’s racebased criteria, and return to court in the five-day
interval in which the treatments must be taken. Of
course, during that narrow window, someone may
have recovered, fallen extremely ill, or even died. That
cannot be what Article III requires.
Respondents issued the directives during an
unforeseen explosion of reported COVID-19 cases in
December 2021—the largest during the pandemic.
That is when the FDA granted Emergency Use
Authorization for two highly promising oral antivirals
(Paxlovid and Molnupiravir) that must be taken
within five days of symptom onset. The directives note
a severe shortage in the antiviral treatments and
instruct medical providers to use racial preferences to
prioritize patients. Medical providers adhering to the
directives allocate treatment based on the number of
risk factors each patient possesses. As relevant here,
non-white race or Hispanic/Latino ethnicity is
considered its own independent risk factor so that
individuals who are non-white or Hispanic/Latino
receive a preference for treatment over otherwise
identically situated individuals who, like Petitioners,
are white and non-Hispanic/Latino.
Faced with burgeoning COVID-19 cases, an
acknowledged supply shortage of effective oral
antiviral treatments, a compressed timeline for taking
the treatments, and the facially discriminatory
criteria contained in the directives, Petitioners filed
3
suit in federal court. The district court dismissed the
case for lack of jurisdiction, and the Second Circuit
affirmed solely on its belief that Petitioners’ injury
was not “actual or imminent” for purposes of Article
III standing. The Second Circuit suggested that
Petitioners must await a host of other events—
including being denied COVID-19 treatments by a
provider who is doing so in adherence to the
directives—before their injury would become
imminent. Judge Cabranes separately indicated his
view that the “government ‘guidance’ effectively
directing health-care providers to prioritize the
treatment of patients based on race or ethnicity may
indeed present portentous legal issues if challenged by
plaintiffs with standing.” See App. 9a.
The Second Circuit’s decision in this case clashes
with decisions from the D.C. Circuit, the Fifth Circuit,
and the Seventh Circuit. Those circuit courts have
opened courthouse doors to plaintiffs suffering
injuries that are imminent because they may arise
from a predictable chain of events. The Second Circuit
in this case reached the opposite conclusion.
The Second Circuit’s decision departs from this
Court’s precedents. This Court has held that plaintiffs
do not have standing where their injuries stem from a
long and extremely speculative chain of contingent
events. See Clapper v. Amnesty Int’l USA, 568 U.S.
398, 410–15 (2013). Yet the mere existence of
contingent events does not make an injury any less
imminent—particularly where, as here, third parties
are coerced by government directive. See Department
of Commerce v. New York, 139 S. Ct. 2551, 2566
(2019). The Second Circuit’s decision also undermines
this Court’s precedents requiring federal courts to
4
hear cases involving race-based barriers that prevent
individuals from competing on equal footing. The
decision below effectively eliminates that test by
requiring plaintiffs to make an additional showing
that they have been denied a benefit because of their
race.
Finally, the issues presented in the case could
hardly be more important. Petitioners challenge
directives that dictate which individuals can obtain
lifesaving treatments and which individuals cannot.
The directives’ mechanical use of race—as a risk
factor for every non-white or Hispanic person in New
York—is patently unconstitutional under this Court’s
precedents. Yet the decision below effectively
forecloses challenges to the unconstitutional
directives by placing insurmountable barriers to
judicial review. This Court should make plain that, to
the extent the government wishes to dictate the
allocation of scarce and lifesaving medical treatment,
it cannot do so by flouting the promise of equality
before the law.
The Court should grant the petition for a writ of
certiorari.
Statement of the Case
A.
The Government’s Race-Based
Directives for Allocating COVID-19
Treatments
i.
The Omicron Variant and Severe
Shortage of COVID-19 Treatments
The COVID-19 pandemic took root in America in
March 2020. The initial crisis was followed by
unpredictable fluctuations in cases and deaths over
the next year. In April 2021, vaccines became widely
5
available, leading to a decline in cases over the
following months. The number of cases fell from more
than 8,000 per day in New York City in January 2021
to fewer than 200 per day in June of the same year.
See NYC Health, COVID-19 Data: Trends and Tools,
Long-term Trends, cases by day. 1 In Fall 2021, the
pandemic appeared to be behind us.
Then came the Omicron variant. In December
2021, the Centers for Disease Control and Prevention
warned that the variant’s “increased transmissibility
and ability” to “evade immunity conferred by past
infection or vaccination” threatened a “rapid increase
in infections.” Potential Rapid Increase of Omicron
Variant Infections in the United States (updated
Dec. 20, 2021). 2 The number of cases in New York City
skyrocketed—from fewer than 2,000 in November to
over 40,000 per day in early January 2022—marking
the “largest wave of reported cases yet during the
pandemic.” App. 81a; NYC Health, Omicron Variant:
NYC Report for January 13, 2022 at 2. 3
Around the same time, the United States Food and
Drug Administration granted Emergency Use
Authorizations for highly effective oral antiviral
treatments: Paxlovid and Molnupiravir. App. 49a. The
New York State Department of Health touted both
treatments to health care providers, noting that
“Paxlovid and molnupiravir reduce the risk of
1 Available at https://www1.nyc.gov/site/doh/covid/covid-19data-totals.page (last visited Feb. 7, 2023).
2 Available at https://www.cdc.gov/coronavirus/2019ncov/science/forecasting/mathematical-modeling-outbreak.html.
3 Available at
https://www1.nyc.gov/assets/doh/downloads/pdf/covid/omicronva
riant-report-jan-13-22.pdf.
6
hospitalization and death by 88% and 30%
respectively, in patients at high-risk for severe
COVID-19 when started early after symptom onset.”
Id. Yet, as was the case across the nation, New York
faced “severe supply shortages for all COVID-19
outpatient therapeutics.” App. 40a. Paxlovid—the
most effective antiviral to combat the Omicron
outbreak—was “out of stock frequently.” Id.
ii.
Respondents’ Race-Based Directives
for Allocating COVID-19 Treatments
On December 27, 2021, the State published a
document entitled “COVID-19 Oral Antiviral
Treatments Authorized and Severe Shortage of Oral
Antiviral and Monoclonal Antibody Treatment
Products” on its website and distributed it to “health
care facilities and prescribing medical professionals in
New York, including licensed physicians, nurse
practitioners, and physicians’ assistants.” App. 102a.
The document apprised providers of the limited
supply of the antivirals, established eligibility criteria
for patients to receive such treatments, and directed
providers to follow a separate set of guidelines in
prioritizing the scarce treatments. App. 48a.
The State’s directive informed providers that the
treatments were suitable for most New York
residents. Persons experiencing mild to moderate
symptoms from COVID-19 may take Paxlovid if they
are at least 12 years old and weigh at least 88 pounds,
and may take molnupiravir if they are at least 18
years old. App. 52a. An eligible patient cannot already
be hospitalized due to severe or critical COVID-19, but
must have a medical condition or other factors that
increase his or her risk for severe illness. Id. Finally,
7
a person seeking an oral antiviral must be able to start
treatment within five days of symptom onset. Id.
The State’s directive expressly notes that “nonwhite race or Hispanic/Latino ethnicity should be
considered a risk factor.” Id. The directive also
instructs health care professionals to “adhere to”
separate State guidance on “prioritization of antiSARS-CoV-2 therapies” and “prioritize therapies for
people of any eligible age who are moderately to
severely
immunocompromised
regardless
of
vaccination status or who are age 65 and older and not
fully vaccinated with at least one risk factor for severe
illness.” App. 50a.
The State’s prioritization guidance reiterates that
“[n]on-white race or Hispanic/Latino ethnicity should
be considered a risk factor, as longstanding systemic
health and social inequities have contributed to an
increased risk of severe illness and death from
COVID-19.” App. 61a. The guidance instructs
providers to prioritize COVID-19 antivirals by
assigning a person seeking treatment to one of five
risk groups and preferencing individuals in the higher
risk groups. The guidance further directs providers to
“prioritize patients” within the same risk group by age
or “number of risk factors.” See 59a–60a. The
prioritization guidance does not enumerate possible
risk factors except for race. See 60a–61a. The guidance
instead refers to a CDC website that lists several risk
factors, including cancer, chronic kidney disease,
obesity, and heart conditions. See App. 43a.
By mechanically treating a person’s race and
ethnicity as an independent risk factor, New York
made race a determinative factor in its prioritization
guidelines in two ways. First, because the guidance
8
requires providers to prioritize treatment within a
risk group based on the number of risk factors,
individuals who are white and non-Hispanic or Latino
are automatically disadvantaged. Second, because a
person’s risk group depends on the number of risk
factors he or she possesses, a person’s race or ethnicity
sometimes determines his or her risk group. As a
result, in times where treatments are in short supply,
a provider may deny a patient potentially lifesaving
treatments because of the patient’s race.
New York City coordinated with the State and
published Health Advisory #39, entitled “COVID-19
Oral Antiviral Treatments Authorized and Severe
Shortage of Oral Antiviral and Monoclonal Antibody
Treatment Products” on December 27, 2021. To avoid
“unnecessary confusion for prescribing physicians
within New York City,” City Opp. to Pltfs’ Mot. for
Prelim. Inj., No. 22-710, ECF No. 20, at 15–16
(E.D.N.Y. filed Feb. 25, 2022), the City’s directive
instructed providers to “[a]dhere to” the State’s
prioritization guidelines. App. 62a. The City
distributed its directive to roughly 75,000 individuals,
aimed at medical professionals and other registered
individuals. App. 84a.
B.
Petitioners Jonathan Roberts and
Charles Vavruska
Petitioners are longtime New York City residents
who seek equal access to the potentially lifesaving
COVID-19 antivirals at issue. See App. 37a–39a. Born
in New York to a Hungarian immigrant, Jonathan
Roberts now lives in Manhattan with his wife of over
30 years. App. 37a. Because Roberts is 61 years old,
white and not Hispanic, and fully vaccinated against
COVID-19 with no known risk factors for severe
9
illness from COVID-19, he does not qualify for
inclusion in any tier of the risk groups established by
the State or City for prioritization of COVID-19
treatments—and would therefore not receive the
antiviral treatments if he were competing for them
with any individual who falls within any of the risk
tiers. App. 38a–39a. If he were any race but white or
if he were Hispanic, he would qualify for the last tier
(1E) of risk groups.
A lifelong New York City resident, Charles
Vavruska is 55 years old and vaccinated against
COVID-19. App. 39a. In March 2020, Vavruska
contracted the disease and was hospitalized for 10
days. Id. Vavruska has at least one risk factor
(overweight and obesity). Id. He therefore qualifies for
the last tier of risk groups for prioritization of COVID19 treatments. Id. The prioritization guidance
instructs providers to prioritize patients within that
risk tier, in part, based on the number of risk factors
they
possess.
Because
non-white
race
or
Hispanic/Latino ethnicity is its own independent risk
factor, Vavruska is disadvantaged compared to others
who are identical to him in every way except for race
and ethnicity.
C.
Proceedings Below
Petitioners filed their complaint in the United
States District Court for the Eastern District of New
York on February 8, 2022. See App. 48a. Petitioners
sued Mary T. Bassett, in her official capacity as
Commissioner for the New York State Department of
Health (the State), 4 and the Department of Health
As noted above, James V. McDonald has replaced Mary T.
Bassett in that role.
4
10
and Mental Hygiene of the City of New York (the
City). Petitioners sought declaratory relief, injunctive
relief, and nominal damages in their complaint and
moved the district court for a preliminary injunction.
Each Respondent filed a separate opposition. Both
claimed that Petitioners lacked standing and
submitted declarations disavowing any punitive
measures against physicians who chose not to follow
their official directives. See App. 87a. At the same
time, each Respondent vigorously defended the racial
component of the directives at every stage of
litigation. The State claimed a strong “scientific basis
for [the] inclusion of race and ethnicity as a known
independent risk factor of severe COVID-19,” Roberts,
State Opp. to Pltfs’ Mot. for Prelim. Inj., No. 22-710,
ECF No. 22, at 4 (E.D.N.Y. filed Feb. 25, 2022), and
insisted that the directive “serves the State’s
compelling interest in protecting the public health of
its citizens and preventing severe illness and death
from COVID-19.” Roberts, 22-622, State’s Br. at 5 (2d
Cir. filed June 16, 2022). For its part, the City
asserted that employing a race-neutral system for
allocating COVID-19 treatments would be “akin to
intentionally maintaining a racially discriminatory
policy for distributing live-saving drugs.” Roberts,
City Opp. to Pltfs’ Mot. for Prelim. Inj., No. 22-710,
ECF No. 20, at 12–13 (E.D.N.Y. filed Feb. 25, 2022).
Following the preliminary injunction hearing, the
State represented that it “plan[ned] to imminently
issue updated guidance . . . to inform health care
facilities, providers, and practitioners that there is
currently no shortage of the COVID-19 therapies at
issue in this case.” App. 102a. In response to an
additional inquiry from the district court, the State
11
noted that “[t]he March 4, 2022 Guidance does not
supersede the December 2021 Guidance but acts an
update to it, informing practitioners that there is
currently no shortage of supplies constraining their
ability to prescribe the antiviral” treatments. App.
104a. In other words, the racial component of the
directive continues today to guide providers in “times
of resource limitations.” Id.; see also Roberts, 22-622,
State’s Br. at 5 (2d Cir. filed June 16, 2022) (“COVID19 remains an ongoing threat, given the periodic
emergence and spread of different variants of the
virus.”); App. 100a (government declarant noting that
“supply chain disruptions can happen at any time”).
The district court dismissed the case. See App. 10a;
Fed. R. Civ. P. 12(h)(3). As for Petitioners’ request for
prospective relief, the district court agreed that “it is
impractical to wait until a person has tested positive
for COVID-19 to file suit challenging the guidance.”
App. 26a. Nevertheless, the district court concluded
that Petitioners failed to allege an imminent injury
given the then-surplus of COVID-19 treatments. App.
25a–28a. The district court also rejected Petitioners’
request against New York City for nominal damages,
which was premised on the increased risk of illness to
Petitioners in the months in which New York faced a
severe shortage of treatments. See Baur v. Veneman,
352 F.3d 625, 628, 641 (2d Cir. 2003) (noting that the
“relevant ‘injury’ for standing purposes may be
exposure to a sufficiently serious risk of medical
harm—not the anticipated medical harm itself”). The
district court held that Petitioners lacked standing for
their nominal damages claim because they did not
contract COVID-19 and seek antiviral treatment from
12
a provider that relied on the directives to deny the
treatment. See App. 28a. 5
The Second Circuit affirmed the judgment of the
district court in a summary order. 6 The Second
Circuit’s affirmance rested entirely on its view that
Petitioners failed to “satisfy the requirement that an
injury in fact be actual or imminent.” See App. 4a–7a.
As for Petitioners’ claim for prospective relief, the
court viewed Petitioners’ injury as speculative
because it believed that Petitioners must test positive
for COVID-19, seek the antivirals at issue, and be
denied treatments by providers adhering to the racebased directives before their claims could be heard in
federal court. App. 6a. The Second Circuit also held
that Petitioners failed to establish their entitlement
to nominal damages because they were not denied the
treatments by a provider.
Judge Cabranes joined the court’s judgment, but
stated his view that “government ‘guidance’
effectively directing health-care providers to prioritize
the treatment of patients based on race or ethnicity
The district court also provided alternative reasons for
dismissing on jurisdictional grounds, but none was adopted by
the panel and one judge suggested that he disagreed with parts
of the district court’s analysis. Compare App. 30a–31a (district
court’s holding that Petitioners lacked standing because they
challenge “nonbinding guidance”), with App. 9a (Second Circuit
judge’s suggestion that other individuals have standing to
challenge the guidance). See Grutter v. Bollinger, 539 U.S. 306,
319 (2003) (evaluating admissions program in which an
applicant’s race may be a determinative factor in some cases, but
“play[s] no role” in others).
6 This case was heard in tandem with the appeal in another
challenge to the State’s directive, which was dismissed by the
United States District Court for the Northern District of New
York. See Jacobson v. Bassett, 22-cv-692 (N.D.N.Y. Apr. 1, 2022).
5
13
may indeed present portentous legal issues if
challenged by plaintiffs with standing.” See App. 9a.
Reasons for Granting the Petition
I.
The Second Circuit Diverges From Three
Other Circuits on Whether a Plaintiff’s
Injury Is Imminent Where It Flows From a
Predictable Course of Events That Results
From Defendant’s Conduct
The Second Circuit differs from three other circuit
courts on the question presented: whether a plaintiff’s
injury is imminent where the anticipated harm
follows from a predictable course of events resulting
from a defendant’s conduct. This is not the first time
the Second Circuit has parted ways with its sister
circuits on this question. In MGM Resorts Int’l Glob.
Gaming Dev., LLC v. Malloy, 861 F.3d 40, 45–49 (2d
Cir. 2017), the Second Circuit considered a casino
developer’s challenge to a state law that advantaged
two federally recognized Indian tribes in applications
to build commercial casinos on non-Indian land in
Connecticut. Id. at 43. The Second Circuit recognized
that the “injury-in-fact” in an equal protection case
involving racial discrimination is the inability “to
compete on an equal footing in the bidding process.”
Nonetheless, the Second Circuit affirmed the district
court’s dismissal on jurisdictional grounds. MGM, 861
F.3d at 46–49. The Second Circuit held that MGM’s
equal protection injury was not imminent merely
because there were additional steps it still needed to
take to enter into the racially discriminatory bidding
process. See id. at 48 (requiring MGM to list a specific
project it wants to bid on, locate a municipal partner,
and secure financing to bid on a project).
14
Like the panel in MGM, the Second Circuit panel
in this case held that Petitioners could not satisfy the
requirement of an imminent injury. The Second
Circuit required Petitioners to actually be denied
treatment on the basis of race before bringing suit,
even though the challenged directives were
specifically intended to allocate scarce COVID-19
treatments to individuals that, in the government’s
view, were most at risk of suffering severe illness or
dying as a result of COVID-19. App. 6a.
Three other circuit courts differ with the Second
Circuit on the “imminence” requirement—and
consider the predictable effects of a defendant’s
actions. The D.C. Circuit’s decision in Sierra Club v.
Jewell, 764 F.3d 1, 7–8 (D.C. Cir. 2014), is illustrative.
There, several organizations sued over the delisting of
Blair Mountain Battlefield, the site of the largest
armed labor conflict in American history, from the
National Register of Historic Places. The
organizations sought to maintain the listing of the
battlefield to minimize the “adverse impacts from
surface mining.” Id. at 3. The district court ruled that
the plaintiffs failed to establish an imminent injury
because it rested on the actions of third-party coal
companies, which had permits to mine the battlefield,
but had not done so for over a decade. See Sierra Club
v. Salazar, 894 F. Supp. 2d 97, 109–11 (D.D.C. 2012),
reversed by Sierra Club v. Jewell, 764 F.3d 1 (D.C. Cir.
2014).
The D.C. Circuit reversed. Citing the standard
that this Court articulated in Clapper, the D.C.
Circuit held that the facts demonstrate a “substantial
probability” of an injury because the companies noted
15
that they expected to someday use their permits. See
Sierra Club, 761 F.3d at 7.
The D.C. Circuit’s opinion in Attias v. CareFirst,
Inc., 865 F.3d 620 (D.C. Cir. 2017), also clashes with
the reasoning of the decision below. That case
involved a class action lawsuit brought by customers
of a health insurer that suffered a cyberattack in
which their personal information was allegedly stolen.
The district court dismissed the lawsuit because it
believed that there were a “series of assumptions” that
made plaintiffs’ injury “too speculative” to satisfy
Clapper. Attias v. CareFirst, Inc., 199 F. Supp. 3d 193,
200 (D.D.C. 2016), reversed by 865 F.3d 620 (D.C. Cir.
2017) (plaintiffs’ injury depended on the ability and
intent of third parties to commit criminal acts by
misusing plaintiffs’ personal information). The D.C.
Circuit reversed. The court explained that it was at
least plausible to infer that the unauthorized party
had “both the intent and the ability to use that data
for ill.” Id. at 628. The plaintiffs therefore satisfied the
requirement of an imminent injury-in-fact. Id. at 629.
The Seventh Circuit’s decision in Remijas v.
Neiman Marcus Group, 794 F.3d 688, 693 (7th Cir.
2015), is similar. There, hackers attacked a luxury
department store’s servers and stole credit card
numbers. Id. at 689. The attack left 350,000 accounts
potentially exposed, but only 9,200 of those were
known to have been used fraudulently. Id. at 690. The
district court dismissed and the Seventh Circuit
reversed. Id. The Seventh Circuit explained that
Clapper did not jettison the “substantial risk”
standard for imminent injury, and noted that Clapper
itself renounced any requirement for “plaintiffs to
demonstrate that it is literally certain that the harms
16
they identify will come about.” Id. at 693 (quoting
Clapper, 568 U.S. at 414 n.5). The Seventh Circuit
allowed the plaintiffs to push past the pleadings stage
because it was “plausible to infer that the plaintiffs
have shown a substantial risk of harm from the
Neiman Marcus data breach.” Id. (noting that the
purpose of a hack is to make fraudulent charges or
assume consumer identities).
The Fifth Circuit’s opinion in McCardell v. U.S.
Dep’t of Housing and Urban Development, 794 F.3d
510 (5th Cir. 2015), also splits from the Second
Circuit. That case involved a plan to replace over 500
public housing units destroyed by a hurricane. See id.
at 513. McCardell sought to enjoin defendants from
implementing the plan, arguing that the proposed
redevelopment on former public housing sites would
injure her by adding to the segregation in her
neighborhood. See id. at 514–15. The Fifth Circuit
held that McCardell had adequately alleged a
threatened injury that is “certainly impending.” Id. at
521. The court explained that the anticipated injuries
emanating from future redevelopment is “inescapably
‘speculative’ in the sense that it is not yet felt,” but the
injury was nonetheless imminent because it would
follow from “the logical course of probable events
flowing from an unfavorable decision by this court.”
Id. at 520 (distinguishing Clapper on grounds that
chain of events in McCardell involved fewer steps and
no “unfounded assumptions”).
17
II. The Second Circuit’s Decision Is
Inconsistent with This Court’s Precedents
A.
Plaintiffs Suffer an Imminent Injury
Where the Injury Follows from a
Predictable Chain of Events
Federal courts have a “virtually unflagging”
obligation to hear and decide cases within their
jurisdiction. Susan B. Anthony List, 573 U.S. at 167.
This Court has held that the imminent-injury
requirement does not require plaintiffs to show that
“it is literally certain that the harms they identify
would come about,” but instead a “substantial risk”
that the harm will occur. Clapper, 568 U.S. at 414 n.5.
The principal question at the pleading stage is
“whether the plaintiffs have plausibly alleged a risk of
future injury that is substantial enough to create
Article III standing.” Attias, 865 F.3d at 626.
This Court’s decision in Department of Commerce
v. New York, 139 S. Ct. 2551 (2019), is instructive. In
that case, a host of plaintiffs including states and nongovernmental organizations challenged the Secretary
of Commerce’s decision to reinstate a question about
citizenship on the 2020 census questionnaire. Id. at
2562–63. Plaintiffs’ injuries did not stem directly from
the secretary’s decision, but “turn[ed] on their
expectation that reinstating a citizenship question
will depress the census response rate and lead to an
inaccurate population count.” Id. at 2565. The
Department of Commerce disagreed, arguing that the
plaintiffs’ “harm depends on the independent action of
third parties choosing to violate their legal duty to
18
respond to the census.” Id. at 2565–66. 7 This Court
was unpersuaded. It held that plaintiffs “have met
their burden of showing that third parties will likely
react in predictable ways to the citizenship question,
even if they do so unlawfully and despite the
requirement that the [Federal] Government keep
individual answers confidential.” Id. at 2566.
So too here. Throughout this case, the government
has insisted that its directives “serve[] the State’s
compelling interest in protecting public health and
preventing severe illness and death from COVID-19.”
Roberts, No. 22-622, State’s Br. at 41 (2d Cir. filed
June 16, 2022). In New York City’s view, employing a
race-neutral system for allocating COVID-19
treatments would be “akin to intentionally
maintaining a racially discriminatory policy for
distributing live-saving drugs.” Roberts, City Opp. to
Pltfs’ Mot. for Prelim. Inj., No. 22-710, ECF No. 20, at
12–13 (E.D.N.Y. filed Feb. 25, 2022). “Why else” would
the City distribute the directives to roughly 75,000
email addresses aimed at medical providers during a
period of severe supply constraints? Remijas, 794 F.3d
at 693; see also App. 102a (State distributed directive
to health care facilities and prescribing medical
professionals in New York, including licensed
physicians, nurse practitioners, and physicians’
7 The Department of Commerce argued that the plaintiffs’ injury
was not fairly traceable to the Department in light of these
independent actions by third parties. See Department of
Commerce, 139 S. Ct. at 2565. This Court’s opinion in Clapper
suggests that there is overlap between the traceability
requirement and the requirement of an imminent injury. See
Clapper, 568 U.S. at 414 (noting that a speculative chain of
possibilities did not establish that the future injuries asserted by
plaintiffs were certainly impending or fairly traceable).
19
assistants). At a minimum, the government sought to
“encourage providers” to follow the directives’ dictates
“when determining treatment options during periods
of limited supply.” Roberts, No. 22-622, State’s Br. at
41 (2d Cir. filed June 16, 2022). 8
Even today, the State represents that its racebased directive has not been superseded. App. 104a–
105a; See Susan B. Anthony List, 573 U.S. at 165
(noting that the government has “not disavowed
enforcement if petitioners make similar statements in
the future”). It strains credulity that the government
would insist on keeping the directive if the risk that
would put its provisions back into effect were
“imaginary or wholly speculative.” Babbitt v. United
Farm Workers Nat. Union, 442 U.S. 289, 302 (1979). 9
B.
Plaintiffs Are Injured by the Imposition
of a Race-Based Barrier and Not the
Ultimate Denial of a Benefit
In Ne. Fla. Chapter of Assoc. Gen. Contractors of
Am. v. City of Jacksonville, 508 U.S. 656 (1993), this
Nor can Respondents shield their directives from review by
pointing to the current supply of antiviral treatments. See App.
6a. Supplies remained limited at the moment which Petitioners
filed their complaint. See Friends of the Earth, Inc. v. Laidlaw
Envtl. Serv. (TOC), Inc., 528 U.S. 167, 180 (2000) (standing is
assessed at the time that the complaint is filed). Even after the
initial supply shortage abated, Respondents averred that supply
chain disruptions can occur at any time, App. 100a, and that
community transmission remains an ongoing public health
concern. App. 80a–81a.
9 Because there is a continuing controversy between the parties,
Petitioners’ request for prospective relief is not moot. In any
event, it comfortably fits within the mootness exception for
controversies that are capable of repetition yet evade review. See
FEC v. Wisconsin Right to Life, 551 U.S. 449, 462 (2007).
8
20
Court held that the injury-in-fact in an equal
protection case is the existence of the race-based
barrier rather than the ultimate denial of a benefit.
Id. at 666. That case centered around a Jacksonville
ordinance that required the city to set aside 10 percent
of city contracts for minority-owned businesses. See
id. at 658. This Court held that, to establish standing,
the Association needed only to demonstrate that “it is
able and ready to bid on contracts and that a
discriminatory policy prevents it from doing so on an
equal basis.” Id. at 666. The Association made such a
showing with uncontested allegations that “its
members regularly bid on construction contracts in
Jacksonville, and that they would have bid on
contracts set aside pursuant to the city’s ordinance
were they so able.” Id. at 668–69.
Contravening this Court’s decision in City of
Jacksonville, the Second Circuit put Petitioners to the
task of demonstrating that they were denied the
actual benefit—lifesaving antivirals—because of their
race. In so doing, the Second Circuit effectively
discarded the rule that this Court set forth in City of
Jacksonville, 508 U.S. at 666. 10
The decision below also thwarts judicial review of
racially discriminatory government action in other
contexts. In Parents Involved in Community Schools
v. Seattle School District No. 1, 551 U.S. 701 (2007),
this Court examined two admissions policies that used
10 Had the Second Circuit applied its reasoning to the fact in City
of Jacksonville, it would have held that the Association could not
show its injury was imminent until its members (1) submitted a
bid (2) on a specific project (3) reviewed by the chief purchasing
officer (4) who, pursuant to the city ordinance, (5) rejected the bid
(6) because of the race of the company’s owner.
21
race in assigning students to schools. The Court held
that both policies violated the Equal Protection
Clause of the Fourteenth Amendment. Id. at 711. The
fact that it was “possible that children of group
members will not be denied admission to a school
based on their race” did not eliminate the injury. Id.
at 718–19; see also id. at 718 (organization had
standing because it had members whose elementary
and middle school children may be denied admission
in the future). In all, the Second Circuit’s decision
threatens to undermine this Court’s precedents, and
close federal courthouse doors to plaintiffs seeking to
enjoin government-sanctioned racial discrimination
in education, public contracting, medicine, and
beyond. 11
III. This Case Presents a Recurring Issue of
Nationwide Importance
This Court should grant the petition because this
case presents important and recurring issues
involving state-sponsored racial discrimination in
medicine. The merits are not a close call. The
directives in this case instruct providers to use race
and ethnicity as a risk factor for every patient seeking
antiviral treatments. App. 61a. Yet this Court has
invalidated government policies that grant the same
mechanical preference for every individual in a racial
or ethnic group. Gratz v. Bollinger, 539 U.S. 244, 271–
11 The Second Circuit compounded this mistake in denying
Petitioners’ request for nominal damages for their increased risk
of illness during the acknowledged period of a severe shortage of
COVID-19 treatments. See, e.g., Hershell Gill Engineers, Inc. v.
Miami-Dade County, 333 F. Supp. 2d 1305, 1342 (S.D. Fla. 2004)
(awarding plaintiffs nominal damages in equal protection case
for the violation of their constitutional rights).
22
72 (2003) (invalidating admissions policy that
awarded “20 points to every single applicant from an
‘underrepresented minority’ group”).
This Court has demanded that the government use
race, if at all, only as a last resort. The government
must engage in “serious, good faith consideration of
workable race-neutral alternatives” that would allow
it to achieve its interests just as well. Grutter, 539 U.S.
at 339. The fact that other states have either
rescinded race-based directives or issued directives
that did not consider race in the first place shows that
ample race-neutral alternatives are readily available.
See, e.g., Wash. Dep’t of Health, Interim-DOH
Guidance on Prioritization for Use of AntiSARS-CoV2 Monoclonal Antibodies (Apr. 18, 2022) (omitting
racial considerations in prioritization of COVID-19
treatments); Utah Dep’t of Health, UDOH announces
changes to risk assessment process for accessing scarce
COVID-19 treatments (Jan. 21, 2022) (reversing
course on the use of race in COVID-19 treatments).
New York defends its idiosyncratic response to the
severe
shortage
of COVID-19
treatments—
proclaiming that the decisions of other states not to
use race “does not preclude New York from making an
independent judgment on the issue.” Roberts, 22-622,
State’s Br. at 43 (2d Cir. filed June 16, 2022). But the
Fourteenth Amendment prohibits states from
experimenting with racial discrimination.
States across the country have adopted guidelines
regarding the distribution of COVID-19 treatments,
thereby
underscoring
significant
nationwide
importance of this case. The issue of scarce medical
treatments is a common medical problem. See, e.g.,
E.J. Emmanuel et al., Fair Allocation of Scarce
23
Medical Resources in the Time of COVID-19, 2020 N.
Engl. J. Med. 2049 (Mar. 23, 2020) (noting shortages
across the world in hospital beds, intensive care beds,
ventilators, and high-filtration N-19 masks). 12 With
alarming frequency, government has attempted to
address these problems by resorting to race. See, e.g.,
Phil Galewitz, Vermont to Give Minority Residents
Preference for COVID Vaccines, Scientific American
(Apr. 6, 2021). Even in the court below, New York City
boasted that it issued another “informational”
advisory to providers, stating that “race and ethnicity
and other social risk factors should be considered
when assessing risk of adverse outcomes from
COVID-19.” See Roberts, No. 22-622, Doc. 103, City’s
Post-Argument Letter to the Court (2d Cir. filed
Nov. 4, 2022) (citing NYC Dep’t of Health, 2022
Health
Advisory
#28:
Prescribe
COVID-19
Therapeutics
to
Prevent
Severe
Disease,
Hospitalization, and Death This Winter (Nov. 4,
2022)). 13
The Constitution counsels the government to
disengage from the “sordid business” of “divvying us
by race.” League of United Latin Am. Citizens v. Perry,
548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in
part and dissenting in part). Yet the decision below
would
shield
even
plainly
unconstitutional
government action from judicial review. That is
particularly egregious here, where, as the district
court recognized, “it is impractical to wait until a
person has tested positive for COVID-19 to file suit,”
App. 26a.
12 https://www.nejm.org/doi/full/10.1056/nejmsb2005114
13 https://www.nyc.gov/assets/doh/downloads/pdf/han/
advisory/2022/prescribe-covid-19-therapeutics-this-winter.pdf
24
The issues are cleanly presented in this case. The
Second Circuit’s decision rested solely on its mistaken
belief that “Plaintiffs fail to satisfy the requirement
that an injury in fact be actual or imminent.” See App.
4a–6a. This Court should reverse the Second Circuit’s
decision. See Susan B. Anthony List, 573 U.S. at 168.
As Judge Cabranes observed below, government
directives instructing providers to prioritize
treatments to patients on the basis of race or ethnicity
raise “portentous legal issues.” App. 9a. Federal
courts are precisely where such portentous legal
issues should be resolved.
Conclusion
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
DATED: February 2023.
Respectfully submitted,
WENCONG FA
Counsel of Record
CALEB R. TROTTER
Pacific Legal Foundation
555 Capitol Mall, Suite 1290
Sacramento, California 95814
Telephone: (916) 419-7111
WFa@pacificlegal.org
Counsel for Petitioners
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