Coney Island Prep v. U.S. Dep't of Health & Human Servs.

• Decision Date: 11 December 2020
• Docket Number: 20 Civ. 9144 (VM)
• Citation: 506 F.Supp.3d 203
• Parties: CONEY ISLAND PREP, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

506 F.Supp.3d 203

CONEY ISLAND PREP, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

20 Civ. 9144 (VM)

United States District Court, S.D. New York.

Signed December 11, 2020

Goutam Umesh Jois, Norman H. Siegel, Cary McClelland, Siegel Teitelbaum & Evans, LLP, Marjorie Joan Peerce, Ballard Spahr LLP, New York, NY, Michael R. McDonald, Kahlil Charles Williams, Ballard Spahr LLP, Philadelphia, PA, for Plaintiffs.

Allison Rovner, Jennifer Ann Jude, United States Attorney's Office, New York, NY, for Defendants.

DECISION AND ORDER

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 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. BACKGROUND ¹

A. PLAINTIFFS’ ALLEGATIONS

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 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 § 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) 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 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 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...