Case 3:22-cv-00033-MAD-ML Document 34 Filed 02/04/22 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

William A. Jacobson, on behalf of

himself and others similarly situated,

Plaintiff,

v. Case No. 3:22-cv-00033-MAD-ML

Mary T. Bassett, in her official capacity

as Acting Commissioner of the New
York Department of Health,

Defendant.

PLAINTIFF’S NOTICE OF MOTION FOR PRELIMINARY

INJUNCTION
PLEASE TAKE NOTICE that, pursuant to the schedule ordered by this Court
and upon the annexed memorandum of law, declaration, and all other pleadings and
proceedings, Plaintiff William A. Jacobson respectfully moves this Court for a prelim-
inary injunction restraining the Defendant and her successors from implementing and
enforcing the racial preferences in the COVID-19 treatment policy issued by the New
York Department of Health.

Respectfully submitted.

/s/ Jonathan F. Mitchell

Gene P. Hamilton* Jonathan F. Mitchell*
Virginia Bar No. 80434 Texas Bar No. 24075463
Vice-President and General Counsel Mitchell Law PLLC
America First Legal Foundation 111 Congress Avenue, Suite 400
300 Independence Avenue SE Austin, Texas 78701
Washington, DC 20003 (512) 686-3940 (phone)
(202) 964-3721 (512) 686-3941 (fax)
[email protected] [email protected]

(additional counsel listed

on following page)

plaintiff’s notice of motion for preliminary injunction Page 1 of 3

 Case 3:22-cv-00033-MAD-ML Document 34 Filed 02/04/22 Page 2 of 3

Adam K. Mortara* Jeffrey Harris*

Illinois Bar No. 6282005 Michael Connolly*
Lawfair LLC James Hasson*
125 South Wacker Drive Suite 300 Consovoy McCarthy PLLC
Chicago, Illinois 60606 1600 Wilson Boulevard, Suite 700
(773) 750-7154 (703) 243-9423
[email protected] Arlington, Virginia 22209
[email protected]
James P. Trainor [email protected]
New York Bar No. 505767 [email protected]
Trainor Law PLLC
2452 U.S. Route 9
Malta, New York 12020
518-899-9200 (phone) * admitted pro hac vice or
518-899-9300 (fax) pro hac vice application pending
[email protected]
Counsel for Plaintiff and
Dated: February 4, 2022 the Proposed Class

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CERTIFICATE OF SERVICE
I certify that on February 4, 2022, I electronically filed this document with the
clerk of court using the CM/ECF System, which will automatically send e-mail noti-

fication to all counsel of record.

/s/ Jonathan F. Mitchell

Jonathan F. Mitchell
Counsel for Plaintiff and
the Proposed Class

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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

William A. Jacobson, on behalf of

himself and others similarly situated,

Plaintiff,

v. Case No. 3:22-cv-00033-MAD-ML

Mary T. Bassett, in her official capacity

as Acting Commissioner of the New
York Department of Health,

Defendant.

PLAINTIFF’S MEMORANDUM IN SUPPORT OF

MOTION FOR A PRELIMINARY INJUNCTION
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TABLE OF CONTENTS
Table of contents .................................................................................................... i
Table of authorities ................................................................................................ ii
Introduction.......................................................................................................... 1
Background ........................................................................................................... 2
I. The COVID-19 pandemic .......................................................................... 2
II. The state’s restrictions of COVID-19 oral antiviral treatments by race ......... 3
III. The plaintiff’s exclusion of treatment on the basis of race ............................ 5
Argument .............................................................................................................. 6
I. Plaintiff is likely to prevail on the merits ...................................................... 6
A.The treatment policy violates the Equal Protection Clause ....................... 6
B. The treatment policy violates Title VI of the Civil Rights Act ................... 8
C. The treatment policy violates section 1557 of the Affordable Care
Act ........................................................................................................ 9
II. Plaintiff satisfies the remaining preliminary-injunction criteria ...................... 9
Conclusion .......................................................................................................... 12
Certificate of service ............................................................................................ 13

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TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (2000) .................................. 6, 7
Agudath Israel of Am. v. Cuomo, 983 F.3d 620 (2d Cir. 2020) ......................... 9, 11
Association for Fairness in Business Inc. v. New Jersey,
82 F. Supp. 2d 353 (D.N.J. 2000) ................................................................... 10
City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ..................................... 7
Cortez III Service Corp. v. Nat’l Aeronautics & Space Admin.,
950 F. Supp. 357 (D.D.C. 1996) ..................................................................... 10
Crowley v. Local No. 82, Furniture & Piano Moving,
679 F.2d 978 (1st Cir. 1982) .......................................................................... 11
Fisher v. Univ. of Texas at Austin, 570 U.S. 297 (2013) ...................................... 6, 7
Francois v. Our Lady of the Lake Hosp., Inc.,
8 F.4th 370 (5th Cir. 2021)............................................................................... 9
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) ......................................................... 9
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) ....................... 2
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) .............................................. 11
Miller v. Johnson, 515 U.S. 900 (1995) .............................................................. 6, 7
Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of
Jacksonville, 508 U.S. 656 (1993) .................................................................... 10
Nken v. Holder, 556 U.S. 418 (2009) .................................................................. 11
O’Donnell Construction Co. v. District of Columbia,
963 F.2d 420 (D.C. Cir. 1992) ........................................................................ 10
Parents Involved in Community Schools v. Seattle School District No. 1,
551 U.S. 701 (2007) ......................................................................................... 8
Rice v. Cayetano, 528 U.S. 495 (2000) .................................................................. 8
Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) ..................................................... 6
Vitolo v. Guzman, 999 F.3d 353 (6th Cir. 2021) .................................................... 9
Westfield High School L.I.F.E. Club v. City of Westfield,
249 F. Supp. 2d 98 (D. Mass. 2003)................................................................ 11
Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) ............................................. 8
Statutes
42 U.S.C. § 2000d ................................................................................................ 8
42 U.S.C. § 2000d-4a............................................................................................ 8

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42 U.S.C. § 18116 ................................................................................................ 9

Rules
Fed. R. Civ. P. 65(c) ............................................................................................ 11
Other Authorities
Shirin Ali, New Study Finds Omicron Variant Better at Evading
Immunity, The Hill (Jan. 3, 2022), https://bit.ly/3I9yXvD ............................. 2
Aaron Blake, ‘Most People Are Going to Get Covid’: A Momentous
Warning at a Senate Hearing, Washington Post (Jan. 11, 2022),
https://wapo.st/3fqyxVt .................................................................................. 3
Lexi Lonas, Fauci: Omicron Will Infect ‘Just About Everybody’, The
Hill, (Jan. 12, 2022), https://bit.ly/322TOBo................................................. 3
Jeremy Olson, Minnesota Removes Race as Factor in Rationing
COVID-19 Antibody Treatment, The Star Tribune, (Jan. 13,
2022), http://strib.mn/3tw9DvG .................................................................... 5
UDOH Announces Changes to Risk Assessment Process for Accessing
Scarce COVID-19 Treatments, Utah Dep’t of Health (Jan. 21,
2022), https://bit.ly/3HqVVP0 ...................................................................... 5

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INTRODUCTION
The New York Department of Health recently announced that it will give auto-
matic priority to “non-white” and “Hispanic/Latino” individuals in distributing life-

saving COVID-19 treatments. Under the Department’s policy (the “Treatment Pol-
icy”), non-Hispanic whites who test positive for COVID-19 are ineligible for oral
antiviral treatments unless they demonstrate “a medical condition or other factors that
increase their risk for severe illness.” But non-whites and Hispanics/Latinos who test
positive for COVID-19 are automatically eligible for these life-saving antiviral treat-
ments — regardless of the individual’s medical situation — because the Department
has proclaimed that one’s status as a racial or ethnic minority is itself a “risk factor”
for severe illness from COVID-19, even if the individual has no medical condition
that would make him more susceptible to harm from COVID-19. In the words of the
Department: “Non-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.”
The Department’s explicit racial preferences in the distribution of COVID-19

treatments are patently unconstitutional and should be immediately enjoined. Using

a patient’s skin color or ethnicity as a basis for deciding who should obtain lifesaving
medical treatment is appalling. And directing medical professionals to award or deny
medical care based on immutable characteristics such as skin color, without regard to
the actual health condition of the individual who is seeking these treatments, is noth-
ing more than an attempt to establish a racial hierarchy in the provision of life-saving
medicine. Worse still, the Department ignores the obvious race-neutral alternative
policy of making antiviral treatments available to patients of any race who can demon-
strate risk factors such as advanced age, obesity, a compromised immune system, or
other medical conditions. The Treatment Policy violates the Constitution and multi-
ple federal statutes, and Plaintiff is not just likely but certain to prevail on the merits.

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The other preliminary injunction factors — irreparable injury, the balance of eq-
uities, and the public interest — also favor enjoining the Department’s racial classifica-

tions. Courts have held repeatedly that plaintiffs suffer irreparable harm when they
lose access to a valuable benefit or are forced to compete under more onerous terms
because of a racial classification. And the balance of equities is not close. The Depart-
ment cannot plausibly contend that it will be injured if it is enjoined from enforcing
the express racial preferences in the Treatment Policy. Even without those preferences,
the Department can continue allocating antiviral drugs to all patients — regardless of
race — based on objective medical risk factors that identify the patients most in need
of these lifesaving treatments. Finally, courts have repeatedly held that there is always
a strong public interest in enjoining unconstitutional and unlawful government ac-
tions. This Court should grant the motion for preliminary injunctive relief and order
the Department to get out of the “sordid business [of] divvying us up by race.” League
of United Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., con-
curring in part and dissenting in part).

BACKGROUND
I. The COVID-19 Pandemic
The impact of the coronavirus is well-known. Since March 2020, the virus has
infected tens of millions of people and killed nearly 900,000 Americans. COVID Data
Tracker, Centers for Disease Control & Prevention, https://bit.ly/3J4SWfB (ac-
cessed on Feb. 4, 2022). In late November 2021, the World Health Organization
announced the discovery of the highly contagious “Omicron” variant. World Health
Organization, Update on Omicron, (Nov. 28, 2021), https://bit.ly/3ftaViX. Omi-
cron is far more contagious than other strains of COVID and can evade the immunity
provided by prior infection or vaccination. Shirin Ali, New Study Finds Omicron Var-
iant Better at Evading Immunity, The Hill (Jan. 3, 2022), https://bit.ly/3I9yXvD.

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Almost no one will be spared from contracting COVID-19. As the FDA Com-
missioner recently testified, “most people are going to get covid.” Aaron Blake, ‘Most

People Are Going to Get Covid’: A Momentous Warning at a Senate Hearing, Wash-
ington Post (Jan. 11, 2022), https://wapo.st/3fqyxVt; see also Lexi Lonas, Fauci:
Omicron Will Infect ‘Just About Everybody’, The Hill, (Jan. 12, 2022),
https://bit.ly/322TOBo. As of February 4, 2022, there have been more than 75
million reported cases of COVID-19 in the United States. COVID Data Tracker,
supra. In the past seven days alone, nearly three million people in the United States
have contracted COVID-19. Id. New York State and Tompkins County (where Plain-
tiff resides) are no exception. New York has been averaging more than 50,000 new
COVID cases per day in the last week, and Tompkins County, with a population of
just over 100,000, has been averaging more than 600 cases per day. Id.

II. The State’s Restrictions Of COVID-19 Oral Antiviral

Treatments By Race
In late December 2021, the Food and Drug Administration gave emergency-use
authorization for two COVID-19 oral antiviral therapies, Paxlovid and molnupiravir.
Coronavirus (COVID-19) Update: FDA Authorizes First Oral Antiviral for Treatment
of COVID-19, U.S. Food & Drug (Dec. 22, 2021), https://bit.ly/3gm2TJg; Coro-
navirus (COVID-19) Update: FDA Authorizes Additional Oral Antiviral for Treat-
ment of COVID-19 in Certain Adults, U.S. Food & Drug (Dec. 23, 2021),
https://bit.ly/35LUXik
On December 27, 2021, the New York Department of Health issued a memo-
randum to healthcare providers and healthcare facilities entitled “COVID-19 Oral
Antiviral Treatments Authorized and Severe Shortage of Oral Antiviral and Monoclo-
nal Antibody Treatment Products.” See Dkt. 1-1 (“Treatment Policy”). The Depart-
ment announced that Paxlovid and molnupiravir had received Emergency Use Au-

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thorization from the U.S. Food and Drug Administration and that these antiviral ther-
apies significantly reduce the risk of hospitalization and death from COVID-19. Id.

at 1–2. Importantly, “[t]reatment is most effective when given as soon as possible

and no more than 5 days after symptom onset.” Id. at 3.
The Department warned, however, that “[w]hile the availability of oral antivirals
for treatment of COVID-19 is an important milestone, it comes at a time of a signif-
icant surge in cases and reduced effectiveness of existing therapeutics due to the omi-
cron variant, which is now the predominant variant nationally and estimated by the
[CDC] to account for over 90% of cases in New York.” Id. at 1. Accordingly, New
York is facing a “severe shortage of oral antiviral and monoclonal antibody treatment
products.” Id.
Given these “severe resource limitations,” the Department instructed health-care
providers and health-care facilities to “prioritize treatment for patients at highest risk
for severe COVID-19 until more product becomes available.” Id. at 2. The memo-
randum then defines a patient’s “eligibility” for these oral antiviral treatments. Id.
Under the new policy, oral antiviral treatments are authorized only “for patients who
meet all the following criteria”:

• Age 12 years and older weighing at least 40 kg (88 pounds) for

Paxlovid, or 18 years and older for molnupiravir
• Test positive for SARS-CoV-2 on a nucleic acid amplification test or
antigen test; results from an FDA-authorized home-test kit should
be validated through video or photo but, if not possible, patient
attestation is adequate
• Have mild to moderate COVID-19 symptoms
o Patient cannot be hospitalized due to severe or critical
COVID-19
• Able to start treatment within 5 days of symptom onset
• Have a medical condition or other factors that increase their risk for
severe illness.

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o Non-white race or Hispanic/Latino ethnicity should be consid-

ered a risk factor, as longstanding systemic health and social
inequities have contributed to an increased risk of severe ill-
ness and death from COVID-19

Id. (emphasis added). The memorandum directs health-care providers and facilities in
New York to “adhere” to the Department’s “prioritization” instructions because of
the “severe shortage of oral antiviral and monoclonal antibody treatment products.”
Id. at 1.
Thus, under the Policy, there is a racial hierarchy in the distribution of lifesaving

COVID-19 medication. Non-whites and Hispanics/Latinos who test positive for

COVID-19 automatically qualify for oral antiviral treatments, while identically situ-
ated non-Hispanic whites are ineligible unless they demonstrate a “medical condition”
or “risk factor” that increases their risk for severe illness. For example, a healthy 25-
year-old African American would be automatically eligible for these treatments while
a similarly healthy 62-year-old white person would be ineligible for the treatment.
Other states that initially adopted race-based policies similar to New York’s have
quickly rescinded them. See Jeremy Olson, Minnesota Removes Race as Factor in Ra-
tioning COVID-19 Antibody Treatment, The Star Tribune, (Jan. 13, 2022),
http://strib.mn/3tw9DvG; UDOH Announces Changes to Risk Assessment Process for
Accessing Scarce COVID-19 Treatments, Utah Dep’t of Health (Jan. 21, 2022),
https://bit.ly/3HqVVP0. Yet New York continues to forge ahead with its plan to
ration life-saving treatments by race.

III. The Plaintiff’s Exclusion Of Treatment On The Basis Of

Race
Plaintiff William Jacobson is a citizen and resident of Tompkins County, New
York. Jacobson Decl. ¶1. Plaintiff is of East European ancestry. Jacobson Decl. ¶3.
Under the Treatment Policy, he is not “non-white” and not “Hispanic/Latino.” Ja-
cobson Decl. ¶3. Like all residents of New York at a time when the Omicron variant

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is surging, Plaintiff is likely to contract COVID-19. Supra at 2-3; Jacobson Decl. ¶¶4-
7. Plaintiff is especially at risk for contracting COVID-19 because he teaches at Cor-

nell University, which recently had a severe outbreak despite its extensive COVID
protocols (including a 97% vaccination rate among the campus community and com-
pulsory indoor mask wearing). Jacobson Decl. ¶4; see Anil Oza, How the Omicron
Variant and the End of the Semester Created a ‘Perfect Storm’ for Cornell’s COVID
Outbreak, The Cornell Sun, (Dec. 17, 2021), https://bit.ly/32a0sGc.

ARGUMENT
To receive a preliminary injunction, a plaintiff must show (1) “a likelihood of
success on the merits”; (2) that he is “likely to suffer irreparable injury in the absence
of an injunction”; (3) that “the balance of hardships tips in [his] favor”; and (4) that
“the public interest would not be disserved by the issuance of a preliminary injunc-
tion.” Salinger v. Colting, 607 F.3d 68, 79–80 (2d Cir. 2010) (cleaned up). Plaintiff
satisfies all four requirements.

I. Plaintiff Is Likely To Prevail On The Merits

A. The Treatment Policy Violates The Equal Protection Clause
The Equal Protection Clause prohibits a state government from “deny[ing] to

any person within its jurisdiction the equal protection of the laws.” The “central man-
date” of equal protection is “racial neutrality” by the government. Miller v. Johnson,
515 U.S. 900, 904 (1995). “Whenever the government treats any person unequally
because of his or her race, that person has suffered an injury that falls squarely within
the language and spirit of the Constitution’s guarantee of equal protection.” Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 229–30 (2000). “Distinctions between citi-
zens solely because of their ancestry are by their very nature odious to a free people,
and therefore are contrary to our traditions and hence constitutionally suspect.” Fisher
v. Univ. of Texas at Austin, 570 U.S. 297, 309 (2013) (cleaned up).

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“[A]ll racial classifications, imposed by whatever federal, state, or local govern-

mental actor, must be analyzed by a reviewing court under strict scrutiny.” Adarand,

515 U.S. at 227. Strict scrutiny is a “searching examination, and it is the government
that bears the burden to prove that the reasons for any racial classification are clearly
identified and unquestionably legitimate.” Fisher, 570 U.S. at 310 (cleaned up). Un-
der strict scrutiny, “the government has the burden of proving that racial classifica-
tions are ‘narrowly tailored measures that further compelling governmental inter-
ests.’” Johnson, 543 U.S. at 505.
The Treatment Policy is subject to strict scrutiny because it employs explicit racial
classifications in determining eligibility for COVID-19 treatments. Under the Policy,
non-whites and Hispanic/Latinos who test positive for COVID-19 automatically
qualify for oral antiviral treatments, while identically situated non-Hispanic/Latino
whites are ineligible unless they demonstrate a “medical condition” or “risk factor”
that increases their risk for severe illness. Treatment Policy at 2. The Policy thus in-
cludes an express racial classification and may be found constitutional only if it can
withstand strict scrutiny. See Johnson, 543 U.S. at 505.
The Department cannot satisfy this heavy burden. First, the Department cannot
show a compelling interest for allocating COVID-19 treatments on the basis of race.
The Department justifies its Policy as remedying “longstanding systemic health and
societal inequities.” Treatment Policy at 2. But a “generalized assertion that there has
been past discrimination” cannot serve as a compelling interest for present racial clas-

sifications. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 498 (1989). For the
governmental interest “in remedying past discrimination to be triggered, ‘judicial,
legislative, or administrative findings of constitutional or statutory violations’ must be
made.” Id. “Only then does the government have a compelling interest in favoring
one race over another.” Id. The Department has made no such findings here.

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Second, the Policy is not narrowly tailored to any government interest in ensuring
that scarce antiviral drugs are distributed to those who need them the most. There is

no evidence that the Department ever “considered methods other than explicit racial
classifications to achieve [its] stated goals.” Parents Involved in Community Schools v.
Seattle School District No. 1, 551 U.S. 701, 704 (2007). Nor can the Department
show “the most exact connection between [its] justification and classification.”
Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 (1986).
The Policy fails any conceivable level of tailoring analysis because there are obvi-
ous race-neutral alternatives that the Department failed to pursue. Most obviously,
the Department could have established objective medical criteria or risk factors for all
patients regardless of race to determine eligibility for antiviral drugs. For example, it
is well-established that advanced age, obesity, a weakened immune system, and several
other chronic medical conditions such as cancer or lung disease increase the risk of
serious illness or hospitalization from COVID-19. By applying the same neutral, ob-
jective medical criteria to all patients, the Department could accomplish its goals of
reserving treatment for the most at-risk patients without employing the “odious,”
Rice v. Cayetano, 528 U.S. 495, 517 (2000), and “highly suspect tool” of racial clas-
sifications, Croson, 488 U.S. at 493.

B. The Treatment Policy Violates Title VI Of The Civil Rights Act

Title VI of the Civil Rights Act of 1964 provides that no person “shall, on the
ground of race, color, or national origin, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any program or activity re-
ceiving Federal financial assistance.” 42 U.S.C. § 2000d. The Department receives
federal financial assistance, see New York State Division of the Budget, Health, De-
partment of, https://on.ny.gov/3fsjgmY, and so is subject to Title VI’s prohibitions,
see 42 U.S.C. § 2000d-4a. The Department is violating the clear and unambiguous

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text of Title VI by discriminating on account of race, and the Court should immedi-
ately enjoin it from enforcing or implementing these patently unlawful racial classifi-

cations.

C. The Treatment Policy Violates Section 1557 Of The Affordable

Care Act
Section 1557 of the Affordable Care Act “prohibits discrimination based on any
of the grounds protected under Title VI . . . , during the provision of health care.”
Francois v. Our Lady of the Lake Hosp., Inc., 8 F.4th 370, 377 (5th Cir. 2021); see 42
U.S.C. §18116 (“[A]n individual shall not, on the ground prohibited under title VI
of the Civil Rights Act . . . be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under, any health program or activity, any part
of which is receiving Federal financial assistance.”) (citing 42 U.S.C. § 18116). Be-
cause the Treatment Policy discriminates based on race in violation of Title VI, the
policy also violates section 1557.

II. Plaintiff Satisfies The Remaining Preliminary-Injunction

Criteria
Irreparable Harm. A “‘presumption of irreparable injury flows from a violation

of constitutional rights.’” Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 636 (2d
Cir. 2020) (quoting Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996)). Without an

injunction, Plaintiff and his fellow class members will be subjected to racial discrimi-
nation under the Equal Protection Clause and federal civil rights law, which is classic
irreparable harm.
Moreover, courts have repeatedly held that a plaintiff suffers irreparable harm
when he is denied access to a valuable benefit, or forced to compete under more
onerous terms, because of his race. See, e.g., Vitolo v. Guzman, 999 F.3d 353, 365
(6th Cir. 2021) (finding irreparable harm where the government was “allocat[ing]

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limited coronavirus relief funds based on the race and sex of the applicants”); Associ-
ation for Fairness in Business Inc. v. New Jersey, 82 F. Supp. 2d 353, 363 (D.N.J. 2000)

(finding irreparable injury and entering a preliminary injunction where the plaintiffs
were forced to “compete on an unfair playing field” as a result of a racial set-aside
program); O’Donnell Construction Co. v. District of Columbia, 963 F.2d 420, 428
(D.C. Cir. 1992) (finding irreparable injury where “non-minority firms [were] ineli-
gible to compete” for certain government contracts); Cortez III Service Corp. v. Nat’l
Aeronautics & Space Admin., 950 F. Supp. 357, 363 & n.5 (D.D.C. 1996) (finding
irreparable injury because, without a preliminary injunction, the plaintiff would be
“excluded from competing” for a contract because of the challenged “set-aside pro-
cess”). And those cases found irreparable harm when the plaintiffs were denied access
to mere economic benefits — such as economic aid, government contracts, or school
admissions — because of their race. It follows a fortiori that irreparable harm exists
when a plaintiff class is subjected to a racial disadvantage in the provision of lifesaving
medical treatment while a pandemic is raging.
Neither Plaintiff nor his fellow class members need to prove that they would ac-
tually receive the antiviral drugs under race-neutral criteria; they need only to establish
that they face an obstacle to receiving those drugs because of their race. “When the
government erects a barrier that makes it more difficult for members of one group to
obtain a benefit than it is for members of another group, a member of the former
group seeking to challenge the barrier need not allege that he would have obtained

the benefit but for the barrier in order to establish [injury-in-fact].” Ne. Fla. Chapter
of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993).
The injury “is the denial of equal treatment resulting from the imposition of the bar-
rier, not the ultimate inability to obtain the benefit.” Id.

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Balance of Harms and the Public Interest. The balance of the equities and the
public interest factors “merge when the Government is the party opposing the pre-

liminary injunction.” Nken v. Holder, 556 U.S. 418, 435 (2009). These factors weigh
in favor of injunctive relief because it is “‘always in the public interest to prevent the
violation of a party’s constitutional rights.’” Melendres v. Arpaio, 695 F.3d 990, 1002
(9th Cir. 2012).
Indeed, “[n]o public interest is served by maintaining an unconstitutional policy
when constitutional alternatives are available to achieve the same goal.” Agudath Is-
rael of Am., 983 F.3d at 636. That is precisely the case here: if the Court enjoins the
racial preferences in the Treatment Policy, it will merely ensure that all patients, re-
gardless of race, are eligible for critical antiviral drugs based on neutral, objective cri-
teria regarding their medical risk factors. Plaintiff and his fellow class members have a
powerful interest in not facing discrimination on account of their race, while the De-
partment has no cognizable interest in allocating treatment based on race when such
decisions could readily be made based on non-racial medical factors.1

1. The court should not require a bond. Courts have “recognized an exception to
the security bond requirement in Fed. R. Civ. P. 65(c) in ‘suits to enforce im-
portant rights or public interests.’” Westfield High School L.I.F.E. Club v. City of
Westfield, 249 F. Supp. 2d 98, 128 (D. Mass. 2003) (quoting Crowley v. Local No.
82, Furniture & Piano Moving, 679 F.2d 978, 1000 (1st Cir. 1982)). Waiving
the bond requirement is particularly appropriate here because Plaintiff is likely to
succeed on the merits and the defendant will incur no “harm, financial or other-
wise” by an injunction that stops the Department from violating the Constitu-
tion. Id.

brief in support of motion for preliminary injunction Page 11 of 13

Case 3:22-cv-00033-MAD-ML Document 34-1 Filed 02/04/22 Page 16 of 17

CONCLUSION
The Court should grant the plaintiff’s motion and preliminarily enjoin the de-
fendant from enforcing the racial preferences in the Treatment Policy.

Respectfully submitted.

/s/ Jonathan F. Mitchell

Gene P. Hamilton* Jonathan F. Mitchell*
Virginia Bar No. 80434 Texas Bar No. 24075463
Vice-President and General Counsel Mitchell Law PLLC
America First Legal Foundation 111 Congress Avenue, Suite 400
300 Independence Avenue SE Austin, Texas 78701
Washington, DC 20003 (512) 686-3940 (phone)
(202) 964-3721 (512) 686-3941 (fax)
[email protected] [email protected]

A dam K. Mortara* Jeffrey Harris*

Illinois Bar No. 6282005 Michael Connolly*
Lawfair LLC James Hasson*
125 South Wacker Drive, Suite 300 Consovoy McCarthy PLLC
Chicago, Illinois 60606 1600 Wilson Boulevard, Suite 700
(773) 750-7154 (703) 243-9423
[email protected] Arlington, Virginia 22209
[email protected]
James P. Trainor [email protected]
New York Bar No. 505767 [email protected]
Trainor Law PLLC
2452 U.S. Route 9
Malta, New York 12020
518-899-9200 (phone) * admitted pro hac vice or
518-899-9300 (fax) pro hac vice application pending
[email protected]
Counsel for Plaintiff and
Dated: February 4, 2022 the Proposed Class

brief in support of motion for preliminary injunction Page 12 of 13

 Case 3:22-cv-00033-MAD-ML Document 34-1 Filed 02/04/22 Page 17 of 17

CERTIFICATE OF SERVICE
I certify that on February 4, 2022, I electronically filed this document with the
clerk of court using the CM/ECF System, which will automatically send e-mail noti-

fication to all counsel of record.

/s/ Jonathan F. Mitchell

Jonathan F. Mitchell
Counsel for Plaintiff and
the Proposed Class

brief in support of motion for preliminary injunction Page 13 of 13

 Case 3:22-cv-00033-MAD-ML Document 34-2 Filed 02/04/22 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NE$T/ YORK

SYIITIAM A.JACOBSON, on beh.alf of

himself and others similarly situated,
Pkinlif, Case N o. 3:22- cv -00033-l\,i:\D-ML

MARY T. IIASSETT, in her official capaciry as

Acting Commissioner ot the Nerv York
Department of Healtl'r,

Defendant.

DECr-ARATTON OF WTLLTAM A. JACOBSON

1. I zm a United States citizen and resident of Tompkins County, New York.

2. I am over the age ot- eighteen arrd under no mental disability or impairment. I have

personal linor.vledge of the follorving facts and, ii called as a rvitness, I r.vould competently testity to

them.

3. I am oF East Europe?rn ancestry zrncl ncit "n<>n-white" imcl not of llispanic/Lating

ethnicity. I am 62years old.

4' I arn a Clinical Professor of l,inv irt Cornell Llniversity.'I'he universiry recently had a

seYere outbreak of COVID-I9 despite its extensive COVID protocols. More rhan 1,300 people on

campus were infected in iust one week according to reported statjstics. .fee Anil Oza, Hou., the Onicrun

Vaiant and the End of the 5'emeffer C)reated a Perfect |'torn'1for C'ome//'t C'OWD Oatbrvak,I'he Cornell Sun,

(Dec. 1 7, 2021), https:/ /bit .ly / 32zAsG c.

5. As of February 3,2022, there harre been <iver 75 rnillion reported cases of (IOVID-19

in the Uniteci States according to reported statjstics. .fee COl.7D Dal:aTrucker, Centers for Disease

Co ntro I & Prevention, htq:s / / b it. Iy / 3JaSWfB.

:
 Case 3:22-cv-00033-MAD-ML Document 34-2 Filed 02/04/22 Page 2 of 3

6. According to iederal officials, "most people are going to get covid." Aaron Rlake, Most

People Are Goiug to Cel: Cztid': A lvlonentoas lY,lanting al a .fenate Heaing,\Yashington Post (]an. 11,2022),

https : / /rvapo. s t/ 3f clyxVt

7. \X,'hen I inevitably contract COVLD-19, I'uvant to irnmediately access oral zurtiviral

treatments to reduce my risk of serious illness or death.

8. In New York, lt{rrvever, I '.un not'.rutomatically eligible to receive these treatments

beciruse I am notnon-white:rnd ncit of "Ilispanicf I;atino ethnicity." I can only olltain these treatments

iil demonstrate"a medical conclition or other tactors that increase [my] risk for severe illness."

9. Like Nerv Yorkers of other races and ethnicity, I want to be eligible for and obtzrin

these treatments without having to demonstrzte a. "meclical condition or other f?rctors thzrt increase

fmy] risk fbr severe illness."

10. I have n heightenecl concern lviren .l go about my daiiy activities because I knorv that
I arn not automatic'ally eligible for life-silving treatnrents under Nerv York State guidelines solely

because of my race,and ethnicity.

 Case 3:22-cv-00033-MAD-ML Document 34-2 Filed 02/04/22 Page 3 of 3

Pursuant to 28 {"i.S.C. $17i16, I c'lcclare under penalty oiper:jur:y that the foregoing is true anc'l

correct to the best of my knorvlec-lge.

I-ixecutecl ,f-,is{try of F'ebru:rry ,2022

 Case 3:22-cv-00033-MAD-ML Document 34-3 Filed 02/04/22 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

William A. Jacobson, on behalf of

himself and others similarly situated,

Plaintiff,

v. Case No. 3:22-cv-00033-MAD-ML

Mary T. Bassett, in her official capacity

as Acting Commissioner of the New
York Department of Health,

Defendant.

[PROPOSED] ORDER GRANTING

MOTION FOR PRELIMINARY INJUNCTION
The Court concludes that the plaintiff is likely to succeed on the merits of his
claims that the New York Department of Health’s use of racial preferences in rationing
and distributing COVID-19 medication violates the Equal Protection Clause, Title
VI, and section 1557 of the Affordable Care Act. The Court further concludes that
the plaintiff will suffer irreparable harm absent a preliminary injunction because the
plaintiff is experiencing racial discrimination at the hands of government officials, and
these injuries are irreparable because the plaintiff cannot obtain damages from the

defendants on account of their sovereign immunity. The Court also finds that the
balance of equities favors the plaintiff, and the public interest supports a preliminary
injunction order.
It is therefore ORDERED that:
1. Defendant Mary T. Bassett and her successors in office, along with their offic-
ers, agents, servants, employees, attorneys, designees, and subordinates, as well as any
person acting in concert or participation with them, are ENJOINED from discrimi-

proposed order granting motion for preliminary injunction Page 1 of 2

 Case 3:22-cv-00033-MAD-ML Document 34-3 Filed 02/04/22 Page 2 of 2

nating on account of race or ethnicity in rationing or distributing COVID-19 medi-

cation, or in establishing guidelines for determining which patients should receive

COVID-19 treatments. This prohibition encompasses any consideration or use of a

patient’s race or ethnicity as a criterion in determining whether a patient will receive
COVID-19 medication or treatment.
2. Because the defendant will not suffer any financial loss on account of this
preliminary injunction, there is no need for the plaintiff to post security under Rule
65(c) of the federal rules of civil procedure.

____________________________________
MAE A. D’AGOSTINO
Dated: _________________, 2022 UNITED STATES DISTRICT JUDGE

proposed order granting motion for preliminary injunction Page 2 of 2