DO NO HARM, Plaintiff, -against- PFIZER INC., Defendant.
1:22-cv-07908 (JLR)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
December 16, 2022
JENNIFER L. ROCHON, United States District Judge
JENNIFER L. ROCHON, United States District Judge:
On September 15, 2022, Plaintiff Do No Harm filed a Complaint and Emergency Motion for a Preliminary Injunction and Temporary Restraining Order against Defendant Pfizer Inc. ECF Nos. 1 (Compl.), 5 (Motion). Plaintiff alleges that one of Defendant‘s fellowship programs discriminates against white and Asian-American applicants. Compl. ¶ 3. Plaintiff withdrew its request for a temporary restraining order during a conference on September 21, 2022. See ECF No. 25. For the following reasons, Plaintiff‘s request for a preliminary injunction is DENIED and this action is DISMISSED.
BACKGROUND
I. The Parties
Plaintiff Do No Harm is a Virginia-based nationwide membership organization. Compl. ¶ 9. Its members include physicians, healthcare professionals, medical students, patients, and policymakers who want to protect healthcare from radical, divisive, and discriminatory ideologies, including the rise in explicit racial discrimination in graduate and postgraduate medical programs. Id. Do No Harm was founded six months prior to filing this action and, since it was founded, it has filed multiple complaints against what it perceives to be
Defendant Pfizer is a global research-based company engaged in the business of the discovery, development, manufacture, marketing, sale, and distribution of biopharmaceutical products. Compl. ¶¶ 12, 18; ECF No. 33 (Gramling Decl.) ¶ 3. It is headquartered and has its principal place of business in New York, New York. Compl. ¶ 13.
II. Recruiting, Retaining, and Promoting Diverse Talent
Defendant states that it strives to build and retain a talented and diverse workforce across all levels of the company. ECF No. 32 (Bruce Decl.) ¶ 4. It views diversity at the company as including socioeconomic status, first generation status, military status, membership in a minority racial group, and membership in the LGBTQ+ community. Id. ¶ 5. But Defendant has faced challenges with recruiting, retaining, and promoting diverse talent. Id. ¶ 8.
Defendant‘s employee positions are grouped into various levels. Id. ¶ 6. The positions are, in order of seniority: analyst, manager and senior manager, director and senior director, vice president and above. Id. Defendant relies substantially on internal promotion for senior positions, and generally prefers candidates with at least a graduate degree for those positions. Id.
Defendant‘s data shows that minority groups are underrepresented at the company, and that this gap increases at more senior positions. Id. ¶¶ 7-8. Defendant points out that, for 2019 and 2020, its employees who identify as Black/African American, Latino/Hispanic, or Native American made up only between zero and eight percent of Defendant‘s workforce at each of the analyst, manager, and director levels. Id. ¶ 7; Opp. at 2. Defendant states that its difficulty in recruiting and retaining diverse college graduates for analyst-level positions and diverse master‘s degree holders for manager-level positions has contributed to decreasing minority representation
In 2019, Defendant set Opportunity Parity Goals to address the underrepresentation of minority groups and increase diversity in its leadership positions over the next five years. Id. ¶ 9. In order to achieve parity at the vice president and above levels for U.S. minorities, Defendant‘s Opportunity Parity Goals seek to increase minority representation at the vice president and above levels from 19% to 32% and double the population of Defendant‘s Black/African American and Latino/Hispanic workforce. Id. ¶ 9.
III. The Breakthrough Fellowship Program
Defendant launched the Breakthrough Fellowship Program (the Fellowship) in 2021. Compl. ¶ 31. Defendant designed the Fellowship to address its challenges with recruiting, retaining, and promoting diverse talent, and to increase underrepresented groups in leadership positions at the company. Bruce Decl. ¶¶ 11-12. The Fellowship is a prestigious program and represents a nine-year commitment by Defendant to 20 fellows in each cohort year. Id. ¶ 13; Compl. ¶ 32. The Fellowship‘s inaugural cohort commenced in 2021 and the second cohort began in 2022. Bruce Decl. ¶ 19.
The Fellowship proceeds through multiple stages. Compl. ¶ 35; Bruce Decl. ¶ 14. Students apply during their junior year of college. Compl. ¶ 33; Bruce Decl. ¶ 14. Selected fellows complete a summer internship at the company between their junior and senior college years. Compl. ¶ 34; Bruce Decl. ¶ 14. After graduating from college, successful fellows return to the company for a two-year position at the analyst level. Compl. ¶ 35; Bruce Decl. ¶¶ 14-15. Fellows who successfully apply and are admitted into a Master‘s in Business Administration
Applicants to the Fellowship must meet certain requirements. Bruce Decl. ¶ 18. Specifically, the applicant must: be a U.S. citizen or permanent resident; be an undergraduate student enrolled in a full-time university program and graduate the following year; show a committed interest and intent to pursue an MBA, MPH or MS Statistics program; apply to a Breakthrough Fellowship Intern opportunity on the Pfizer website; have earned a grade point average (GPA) of 3.0 or higher; demonstrate exceptional leadership potential; and be willing to work in New York City or another Pfizer location as indicated by the job posting. ECF Nos. 5-5 (Pl. Ex. A) at 5-6, 5-6 (Pl. Ex. B) at 1-2; Bruce Decl. ¶ 18; Compl. ¶ 42.1
Applicants must also [m]eet the program‘s goals of increasing the pipeline for Black/African American, Latino/Hispanic and Native Americans. Pl. Ex. A at 5; Pl. Ex. B at 2; Bruce Decl. ¶ 18; Compl. ¶ 45. Plaintiff contends that this means that the Fellowship categorically excludes white and Asian American applicants and applicants must be Black/African American, Latino/Hispanic, or Native American. ECF No. 5-8 (Opening Br.) at 1. Plaintiff alleges that white and Asian-American applicants need not apply in light of the selection criteria. Compl. ¶ 5. Plaintiff does not allege that white or Asian-American applicants,
The Fellowship selection process is highly competitive. Bruce Decl. ¶¶ 13, 22. Defendant received 2,600 applications for the 2021 cohort and 1,000 applications for the 2022 cohort. Id. ¶ 20. Of these, Defendant selected 40 total fellows. Id. ¶ 21. Every fellow selected received a top tier rating in the screening interview and well exceed[ed] Pfizer‘s minimum criteria for selection to the Fellowship. Id. ¶¶ 22-24. Defendant‘s Director of Early Pipeline Lead states that she is not aware of any employee of Defendant who has been terminated to make room for any Fellowship recipient. Id. ¶¶ 3, 34.
The application window for the 2023 Fellowship will open in early January 2023 and remain open for three weeks. Bruce Decl. ¶¶ 25-26. It takes Defendant approximately eight weeks to complete the application-screening process; two weeks to extend offers and receive acceptances; and four weeks to complete the hiring and background check processes. Id. ¶ 26. Selected 2023 fellows would begin their internships in early June 2023. Id. ¶ 25. Defendant has carefully planned this recruiting schedule and reports that, if the process is delayed, at least some highly talented, extraordinary candidates that Pfizer wishes to recruit to its program will pursue opportunities other than the Fellowship. Id. ¶ 27.
Defendant posted announcements, Frequently Asked Questions (FAQs), an informational video, and advertisements for the Fellowship on the internet, including on Defendant‘s website, Facebook, LinkedIn, and ZipRecruiter. Compl. ¶ 31; Pl. Ex. A; Pl. Ex. B; ECF Nos. 5-7 (Pl. Ex. C). The informational video states that Defendant intends, by 2025, to
In addition to the Fellowship, Defendant offers several other early-career programs. Bruce Decl. ¶ 28. These include the Summer Growth Experience Program, Global Supply Program, Digital Rotational Program, MBA Summer Associate Program, and Refugee Leadership Initiative. Id. People of all backgrounds are encouraged to apply to these programs. Id. ¶ 29. Defendant also offers its Educational Assistance Program (EAP) to benefits-eligible employees. Id. ¶ 33. The EAP provides $10,000 per year for recipients to pursue an advanced degree or other educational opportunity related to their employment. Id.
IV. Member A and Member B
Plaintiff brought this action on behalf of two of its purported members - Member A and Member B - and submitted anonymous declarations from these members. Compl. ¶ 49; ECF Nos. 5-2 (A Decl.), 5-3 (B Decl.); Opening Br. at 7. Member A is white. A Decl. ¶ 2. Member B is Asian-American. B Decl. ¶ 2. Both members are allegedly in their junior year at unidentified Ivy League universities; are U.S. citizens; maintain a GPA higher than a 3.0 average; are involved in campus life; hold leadership positions on their college campuses; and
The declarations allege that both members are able and ready to apply to the 2023 Fellowship class if Pfizer stops discriminating by race, and that the members are prepared to meet the Fellowship‘s requirements and expectations if they are accepted to and join the Fellowship. A Decl. ¶¶ 9-10; B Decl. ¶¶ 9-10. Both members further allege that they are proceeding under a pseudonym because they fear reprisal if their participation in this litigation becomes public. A Decl. ¶ 12; B Decl. ¶ 12.2
At a conference on September 21, 2022, the Court observed that Plaintiff had not identified the two members by name in signed declarations or otherwise, and asked Plaintiff to address this issue in its further submissions. To-date, Plaintiff has not identified either Member A or Member B by name.
V. Defendant‘s Relationship with the Federal Government
Defendant has partnered with healthcare providers, government health agencies, research hospitals and institutes, and other pharmaceutical companies. Compl. ¶ 21. Between 2014 and 2019 - prior to the facts underlying this action - Defendant‘s Center for Therapeutic Innovation (CTI) collaborated with researchers from the National Institutes of Health (NIH). Id. ¶ 22;
Notwithstanding these private-public partnerships, Defendant submitted a declaration from its Assistant General Counsel affirming that Defendant does not provide any medical treatment or administer any health care; does not receive any financial assistance from the federal government to operate its business as a whole; has not received any monetary assistance from the government through its participation in AMP or the collaboration with NIH; and does not receive any Medicare or Medicaid reimbursement directly from the federal government. Gramling Decl. ¶¶ 4-5, 7, 9-10. Additionally, Defendant submitted a declaration from its Director of Early Lead Pipeline affirming that the Fellowship does not receive, and is not funded by, any type of assistance from the federal government. Bruce Decl. ¶ 17.
VI. Procedural History
Plaintiff filed its Complaint and Emergency Motion for a Preliminary Injunction and Temporary Restraining Order on September 15, 2022. See Compl.; Motion. Plaintiff asserts 15 claims under federal, state, and city law. See generally Compl. Specifically, it brings claims under Section 1981 of the Civil Rights Act of 1866 (Count I), Title VI of the Civil Rights Act (Count II), Section 1557 of the Affordable Care Act (Count III), and the New York State Human
The Court held a conference with counsel for all parties on September 21, 2022. ECF No. 25. On the record at the conference, Plaintiff withdrew its request for a temporary restraining order. See id. Defendant filed opposition papers on October 25, 2022. ECF Nos. 30-33. Plaintiff filed its Reply on November 8, 2022. ECF No. 36.
DISCUSSION
A preliminary injunction is an extraordinary remedy never awarded as of right. Winter v. NRDC, Inc., 555 U.S. 7, 24 (2008); see We the Patriots USA, Inc. v. Hochul, 17 F.4th 266, 279 (2d Cir. 2021) (Issuance of a preliminary injunction is an extraordinary and drastic remedy . . . [and] should not be routinely granted. (internal citations and quotation marks omitted)). A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter, 555 U.S. at 20; accord Pharaohs GC, Inc. v. United States SBA, 990 F.3d 217, 225 (2d Cir. 2021) (same).
A preliminary injunction should not be granted unless the movant, by a clear showing, carries the burden of persuasion. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (internal citation omitted). Further, where a plaintiff seeks a preliminary injunction that will alter the status quo, it must satisfy a heightened standard by demonstrating a ‘substantial’ likelihood of success on the merits, Pharaohs GC, Inc., 990 F.3d at 225 (internal citation omitted), and a
As a threshold matter, the party invoking federal jurisdiction bears the burden of establishing standing. Faculty v. N.Y. Univ., 11 F.4th 68, 74 (2d Cir. 2021), cert. denied sub nom. Fac., Alumni, & Students Opposed to Racial Preferences v. N.Y. Univ., 142 S. Ct. 2813 (2022). When a preliminary injunction is sought, a plaintiff‘s burden to demonstrate standing ‘will normally be no less than that required on a motion for summary judgment.’ Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011) (quoting Lujan v. Nat‘l Wildlife Fed‘n, 497 U.S. 871, 907 n.8 (1990)). Accordingly, to establish standing for a preliminary injunction, a plaintiff cannot rest on such mere allegations, as would be appropriate at the pleading stage, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true. Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)) (internal quotation marks and brackets omitted).
An organization has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization‘s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Faculty, 11 F.4th at 74 (quoting Hunt v. Wash. State Apple Advert. Comm‘n, 432 U.S. 333, 343 (1977)).
To satisfy the first prong of associational standing, i.e., that its members would otherwise have standing to sue in their own right, a plaintiff must show that one or more of its members has: (1) ‘suffered an injury-in-fact - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical‘; (2) ‘there must be a causal connection between the injury and the conduct complained of‘; [and] (3) ‘it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.’ Id. at 74 (quoting LaFleur v. Whitman, 300 F.3d 256, 269 (2d Cir. 2002)).
If a plaintiff fails to establish standing, the court need not address the factors to be considered in deciding whether to award a preliminary injunction and should instead deny the motion and dismiss the case for lack of subject matter jurisdiction. Rojas v. Cigna Health & Life Ins. Co., 793 F.3d 253, 259 (2d Cir. 2015) (affirming denial of motion and dismissal of case where the plaintiff failed to establish standing to move for a preliminary injunction); Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 251 (2d Cir. 2008) (Appellants’ motion for a preliminary injunction should therefore have been dismissed for lack of jurisdiction, rather than on the ground that appellants are unlikely to succeed on the merits of their action.); see also Munaf v. Geren, 553 U.S. 674, 691 (2008) (Review of a preliminary injunction is not confined to the act of granting the injunction, but extends as well to determining whether there is any insuperable objection, in point of jurisdiction or merits, to the maintenance of the bill, and, if so,
I. Standing
Plaintiff brings this action as an association on behalf of its members. See Reply at 7 n.4. Accordingly, Plaintiff must satisfy the three requirements for associational standing set forth above. See Faculty, 11 F.4th at 74. Defendant argues, among other things, that Plaintiff has not established the first prong - that its members would otherwise have standing to sue in their own right. Opp. at 7. The Court agrees. Plaintiff has failed to establish that at least one of its members has Article III standing. Plaintiff has additionally failed to show that any member has statutory standing to bring the federal claims.
A. Article III Standing
1. Identification of Members with Standing
Associational standing requires that a plaintiff identify by name at least one member with standing. See Summers v. Earth Island Inst., 555 U.S. 488, 498-99 (2009) (holding that this requirement of naming the affected members has never been dispensed with except where all the members of the organization are affected by the challenged activity); FW/PBS, Inc. v. Dallas, 493 U.S. 215, 235 (1990) (finding association lacked standing because an affidavit referencing but not naming one or two individuals with standing fail[ed] to identify the individuals). In other words, Plaintiff is required to identify at least one affected member by name. Pen Am. Ctr., Inc. v. Trump, 448 F. Supp. 3d 309, 320-21 (S.D.N.Y. 2020) (rejecting the argu[ment] that Plaintiff need not name an injured member at the pleading stage for associational standing (internal quotation marks and citations omitted)).
Plaintiff argues that, notwithstanding this precedent, there is no requirement that a member be named for purposes of associational standing. Reply at 3-5. Further, Plaintiff argues this is especially true where anonymous declarations are submitted on members’ behalf because those members wish to remain unnamed. Id. Defendant argues that Summers and other case law establish that Plaintiff must name the members upon whose standing Defendant relies, and that the anonymous member declarations are not enough. Opp. Br. at 9-10. The Court agrees with Defendant.
The Court finds the Supreme Court‘s decision in Summers controlling. In Summers, the petitioners asserted associational standing on behalf of their members to challenge certain regulatory projects. 555 U.S. at 498-99. For one challenged project - the Burnt Ridge Project - the petitioners submitted an affidavit of a named association member, which the Government conceded was sufficient to establish Article III standing with respect to Burnt Ridge. Id. at 494. But the petitioners did not identity by name any member with standing to challenge the other specific projects. Id. at 495. The Court determined that, as to those projects, the petitioners did not satisfy the requirement of injury in fact[, which] is a hard floor of Article III jurisdiction. . . . Id. at 497.
The Supreme Court in Summers rejected the contention that the petitioners could establish associational standing based on the organization‘s self-description of the activities of its members, because such an approach would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm. Id. at 497-98. As an example, the Supreme Court cited approvingly its decision in FW/PBS, Inc. v. Dallas, 493 U.S. 215, 235 (1990), where it held that an affidavit that alleged that one or two of the petitioners had
The Summers Court concluded that the requirement of naming the affected members has never been dispensed with except where all the members of the organization are affected by the challenged activity. Id. at 498-99. Here, Plaintiff argues that Summers does not apply because Plaintiff has submitted anonymous member declarations. Reply at 4. But the Supreme Court recognized only one exception to the naming requirement, and Plaintiff‘s declarations do not fall within that exception. Accordingly, because Plaintiff does not allege that all of its members are affected, Summers requires that it identify by name at least one member with standing. Summers, 555 U.S. at 498-99.
The weight of authority in federal courts reaffirms that at least one member must be named for associational standing. In this Circuit, courts in at least three cases have rejected Plaintiff‘s argument and concluded that an associational plaintiff must identify a member with standing by name. See, e.g., Pen Am. Ctr., Inc., 448 F. Supp. 3d at 320-21 (rejecting the argu[ment] that Plaintiff need not name an injured member at the pleading stage for associational standing and holding that Plaintiff is required to identify at least one affected member by name (internal quotations and citations omitted)); Equal Vote Am. Corp. v. Pelosi, 397 F. Supp. 3d 503, 509 (S.D.N.Y. 2019) (And in order to bring claims on behalf of its members under the ‘associational standing’ doctrine, an organizational plaintiff such as EVA must identify, by name, at least one member with standing.); Residents & Fams. United to Save Our Adult Homes v. Zucker, No. 16-cv-1683 (NGG) (RER), 2018 WL 1175152, *6 (E.D.N.Y. Mar. 5, 2018) (finding an association lacked standing because it did not specifically identify and name members who were injured).
Plaintiff cites one case from this District that reached a contrary result. See New York v. U.S. Dep‘t of Com., 351 F. Supp. 3d 502, 606 n.48 (S.D.N.Y. 2019) (allowing non-governmental organizational plaintiffs to proceed with unnamed members), rev‘d on other grounds, 139 S. Ct. 2551 (2019) (finding standing as to governmental plaintiffs on other grounds and not addressing the naming issue). There, the district court permitted members to remain unnamed, to the extent that standing [for those members] depends only on the facts of their existence and residence in a particular jurisdiction. Id. at 606. This is a far cry from the case at hand where numerous characteristics of the members must be examined to determine standing, including their background, qualifications to apply for the Fellowship, future career intentions, etc. See infra at 19-24. One case in this District cites to New York v. United States Department of Commerce for the premise that members may be unnamed for purposes of associational standing. See NRDC, Inc. v. Wheeler, 367 F. Supp. 3d 219, 227 (S.D.N.Y. 2019) (citing New York, 351 F. Supp. 3d at 606). But the court there recognized that an association must nevertheless establish that ‘at least one identified member has suffered or would suffer harm,’ and the plaintiff‘s members in that case did submit named declarations, even if the members’ names were not provided in the initial complaint. Id. at 227, 231-32 (internal citation omitted). The other cases cited by Plaintiff are non-binding decisions from outside of this Circuit, and at least three pre-date Summers.3
Other Courts of Appeal that have addressed the naming requirement since Summers have repeatedly held that an affidavit provided by an association to establish standing is insufficient unless it names an injured individual. Draper v. Healey, 827 F.3d 1, 3 (1st Cir. 2016) (requiring the submission of an affidavit from a named member for associational standing); see, e.g., Associated Gen. Contractors of Am. v. Cal. Dep‘t of Transp., 713 F.3d 1187, 1194 (9th Cir. 2013) (finding an association lacked standing to challenge an affirmative action plan because it did not identify any affected members by name); Ga. Republican Party v. SEC, 888 F.3d 1198, 1204 (11th Cir. 2018) (rejecting argument based on pre-Summers precedent and recognizing the post-Summers requirement that an organization name at least one member who
Plaintiff‘s argument that it need not identify members by name because the mere addition of their names would serve no Article III purpose is unavailing. Reply at 4. The Supreme Court has articulated important purposes served by requiring specific, named members with standing. Such standing requirements assure[] that ‘there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party,’ Summers, 555 U.S. at 493 (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221 (1974)), and that a plaintiff has ‘such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction, id. (quoting Warth v. Seldin, 422 U.S. 490, 498-99 (1975)). Absent identified members, courts would face the difficulty of verifying the facts upon which standing depends, which is the case here. Id. at 499.4 And it is not this Court‘s role to question and rewrite the Supreme Court‘s mandate.
Finally, while the Court concludes that Plaintiff would need to identify at least one member by name even at the pleading stage, it notes that a plaintiff‘s burden to establish
Because Plaintiff does not identify by name any member with standing or advance a theory that all of its members have standing, Plaintiff lacks Article III standing. See Summers, 555 U.S. at 498-99.
2. Injury in Fact
Even if Plaintiff had identified Members A and B by name, the pleadings and evidence provided by Plaintiff do not establish that its members have suffered injury in fact, another requirement for Article III standing. See, e.g., Carney v. Adams, 141 S. Ct. 493, 502-03 (2020) (dismissing claims for lack of an injury in fact); Filozof v. Monroe Cmty. Coll., 583 F. Supp. 2d 393, 403-04 (W.D.N.Y. 2008) (same, on a motion for a preliminary injunction), aff‘d, 411 F. App‘x 423 (2d Cir. 2011).
To establish standing to challenge an allegedly discriminatory selection policy, a plaintiff must submit to the challenged policy. Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2d Cir. 1997). This threshold requirement for standing may be excused only where a plaintiff makes a substantial showing that application . . . would have been futile. Id. (citing
Additionally, such a plaintiff must show that they are able and ready to apply. Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993). This can be a highly-fact specific undertaking and requires more than the non-applicant‘s belief that they meet the minimum qualifications and are able and ready. Carney, 141 S. Ct. at 500-01 (concluding that the plaintiff lacked standing where the overall context did not demonstrate they were able and ready to apply); see Houser v. Pritzker, 28 F. Supp. 3d 222, 238 (S.D.N.Y. 2014) (Applicants who fail to meet the basic eligibility requirements for employment cannot demonstrate that they suffered a ‘particularized’ personal injury by being denied such employment.). Being able and ready to apply requires an intent that is concrete. Carney, 141 S. Ct. at 502; see Faculty, 11 F.4th at 76 (holding that the plaintiff lacked standing without a description of concrete plans to apply (internal quotation marks omitted)).
In support of its argument that it was futile for the Members to apply, Plaintiff alleges that white and Asian-American applicants need not apply to the Fellowship because Pfizer explains that an applicant must ‘[m]eet the program‘s goals of increasing the pipeline for Black / African American, Latino / Hispanic and Native Americans’ [] and it conspicuously leaves out otherwise qualified white and Asian-American students from being eligible to apply. Compl. ¶¶ 43, 45. Defendant, in turn, states in its brief that Plaintiff cites nothing in the materials about
The Court need not determine whether it would be futile for the members to apply because Plaintiff has not adequately shown that at least one identifiable member is “able and ready” to apply. As an initial matter, the anonymous declarations are entitled to diminished evidentiary weight on this motion, if any weight at all. See supra at 12-19 & n.4; Patterson, 375 F.3d at 223 (finding the requirement to “set forth specific facts” was “not satisfied by an affiant whose identity is not disclosed“). Even when affording those declarations full weight, however, Plaintiff has not affirmatively shown that Member A and Member B meet the minimum Fellowship qualifications and are able and ready to apply.
Plaintiff argues that its members have standing because a non-applicant plaintiff “satisfies the requirements of standing by stating that he is ‘able and ready to apply’ when the discrimination stops.” Reply at 2. But the Supreme Court has rejected the notion that a non-applicant‘s assertion that they are able and ready to apply is sufficient. In Carney v. Adams, the
The Supreme Court concluded in Carney that the plaintiff‘s “few words of general intent” and the context of the case did not show an injury in fact. Id. Although the plaintiff stated that he would apply and believes that he met all of the qualifications for the positions, this did not “show that [the plaintiff] was ‘able and ready’ to apply” and did “not sufficiently differentiate[] [the plaintiff] from a general population of individuals affected in the abstract by” the challenged qualification. Id. at 500-02. To hold otherwise, the Court reasoned, “would significantly weaken the longstanding legal doctrine preventing this Court from providing advisory opinions.” Id. at 501. The Supreme Court noted the plaintiff‘s change of party affiliation not long before commencing the lawsuit further indicated that the plaintiff‘s desire was to challenge the eligibility requirements, not to apply to a judicial position. Id.
The brief conclusory sentences in the anonymous members’ declarations regarding their leadership experience are also not enough to establish that they have demonstrated the “exceptional leadership potential” required for the positions. Member A‘s declaration states that the member is “involved in campus life and activities and hold[s] leadership positions in student organizations,” and that the member “previously led and organized volunteer programs.” A Decl. ¶ 6. In nearly identical fashion, Member B is allegedly “involved in campus life and hold[s] leadership positions in various campus activities, including student government.” B Decl. ¶ 6. These generalized recitals do not allege with particularity any activity, leadership
Further, there are no allegations that either anonymous member has pursued opportunities similar to the Fellowship in the past, has engaged in a course of study at their unnamed university that would demonstrate an interest in pursuing a program like the Fellowship, or has any prior involvement with or interest in Pfizer, biopharmaceutical companies, or business management generally.
In sum, these sparse declarations do not establish that Plaintiff‘s members have an “intent [to apply] that is concrete.” Carney, 141 S. Ct. at 502. Indeed, the members’ statements that they joined Plaintiff‘s newly created organization because they “support its mission as well as this lawsuit,” further suggests a generalized grievance against Defendant‘s alleged affirmative action efforts, not an actual desire by the members to apply to the Fellowship and work at Pfizer. A Decl. ¶ 11; B Decl. ¶ 11; see Opp. at 5. Similarly, in Carney, the Supreme Court concluded that the plaintiff‘s change of party affiliation before he commenced the lawsuit “suggests an abstract, generalized grievance, not an actual desire to” apply for a judicial post and become a judge. Id. at 502.
Therefore, the Court concludes that Plaintiff has not established injury in fact necessary for Article III standing because Plaintiff‘s members have “not sufficiently differentiated [themselves] from a general population of individuals affected in the abstract by the [program] [they] attack[].” Carney, 141 S. Ct. at 502 (concluding that the plaintiff‘s words “I would apply” were insufficient without concrete supporting facts, such as past injury, prior applications, prior relevant conversations, or other preparations for the position); see, e.g., Filozof, 583 F. Supp. 2d at 403 (on preliminary injunction motion, finding the plaintiff “failed to show that he was ‘able
B. Claim-Specific Standing
Even if Plaintiff had provided named member declarations with more definite affirmative facts regarding the members’ qualifications and a concrete intent to apply, the Complaint must still be dismissed because Plaintiff also lacks standing to bring the particular federal claims alleged.
1. Section 1981
In this Circuit, an association lacks standing to assert claims on behalf of its members under the Civil Rights Act. See Aguayo v. Richardson, 473 F.2d 1090, 1099 (2d Cir. 1973) (holding that an association may not “sue under the Civil Rights Act for the violation of rights of members“). The Second Circuit has applied this principle to Section 1981 claims. See Warth v. Seldin, 495 F.2d 1187, 1194 (2d Cir. 1974) (finding no associational standing under Sections 1981, 1982, and 1983). And the Circuit has reaffirmed this precedent repeatedly. See, e.g., N.Y. State Citizens’ Coal. for Child. v. Poole, 922 F.3d 69, 74 (2d Cir. 2019) (reaffirming this “string of opinions” starting with Aguayo).
Plaintiff argues that Aguayo and its progeny apply only to Section 1983 of the Civil Rights Act and not Section 1981. Reply at 5-6. Further, Plaintiff suggests that the rule against associational standing in Aguayo contradicts subsequent Supreme Court precedent, and that “in the absence of controlling Second Circuit case law on
In Aguayo v. Richardson, the Second Circuit held that an organization could not bring a Section 1983 claim based on associational standing. Id. at 1099. The Second Circuit observed that “Section 1983 confers a cause of action on ‘any citizen of the United States or other person within the jurisdiction thereof’ who has been deprived under color of state law ‘of any rights, privileges, or immunities secured by the Constitution and laws.‘” Id. The Court concluded that, “[n]either this language nor the [statute‘s] history . . . suggests that an organization may sue under the Civil Rights Act for the violation of rights of members.” Id. (internal citation omitted).
One year later, in Warth v. Seldin, the Second Circuit applied Aguayo to conclude that an association lacked standing to bring claims on behalf of its members under Sections 1981, 1982, and 1983. 495 F.2d at 1194 (“It is highly doubtful that an organization has standing to represent its members in most cases under the Civil Rights Act . . . [the organization] therefore lacks standing.” (citing Aguayo, 473 F.2d at 1099)). On appeal, the Supreme Court in Warth affirmed the Second Circuit on other standing grounds. 422 U.S. 490, 517-18 (1975). In dicta, the Supreme Court noted that, “[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members.” Id. at 511.
Plaintiff argues that the Second Circuit‘s associational standing rule set forth in Aguayo contradicts, and thus does not survive, the Supreme Court‘s dicta in Warth. Reply at 6. But the Second Circuit has rejected that argument and continues to rely on Aguayo and its decision in Warth. In League of Women Voters of Nassau County v. Nassau County Board of Supervisors, decided nine years after Warth, the Second Circuit held that the plaintiff organization did “not
The Second Circuit relied on the Aguayo line of cases again in Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011). There, the Court held that it was “bound to agree with the district court that [the plaintiff organization] cannot bring this action as the representative of its members” under Section 1983. Id. The plaintiff there – like Plaintiff here – argued that “this rule is ‘contradicted by a raft of Supreme Court precedent’ and was effectively rejected by the Supreme Court in Warth v. Seldin.” Id. at 156 n.5. The Second Circuit rejected that argument because it had “reaffirmed the Aguayo rule in League of Women Voters nine years after Warth . . . [and] we are bound by the implicit determination of prior panels that the rule survives Warth . . . .” Id. As previously stated, the Second Circuit reached the same conclusion in 2019 when it again reaffirmed the “string of opinions” beginning with Aguayo and continuing past Warth. N.Y. State Citizens’ Coal. for Child., 922 F.3d at 74-75 (“In a string of opinions, this Court has held that organizations suing under Section 1983 must, without relying on their members’ injuries, assert that their own injuries are sufficient to satisfy Article III‘s standing requirements.“) (internal citations omitted).
Since the Second Circuit has concluded that there is no associational standing under the Civil Rights Act, including for Section 1981 claims, and has reaffirmed that line of cases, this Court is bound to apply that precedent to Plaintiff‘s Section 1981 claim here. See Warth, 495 F.2d at 1194; see also N.Y. State Citizens’ Coal. for Child., 922 F.3d at 74. Accordingly, Plaintiff lacks standing to assert the Section 1981 claim on behalf of its members. See, e.g., Warth, 495 F.2d at 1194 (concluding that the plaintiff lacked associational standing to bring a Section 1981 claim on behalf of its members).
2. Title VI and Section 1557
Title VI 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 receiving Federal financial assistance.”
Section 1557 of the Affordable Care Act provides that “an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 . . . 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 . . . .”
Here, Plaintiff contends that Defendant is principally engaged in the business of providing healthcare and receives financial assistance as a whole, so Defendant may be subject to race discrimination claims under Title VI and Section 1557. Opening Br. at 10-13; Reply at 11-13.6 Defendant argues that its operations are “not subject to Title VI or § 1557” because Defendant is not a healthcare provider and does not receive federal assistance as a whole. Opp. at 16-19. Defendant also argues that “Plaintiff‘s Title VI claim fails because Plaintiff does not show – because it cannot show – that Pfizer receives federal funds aimed primarily at providing employment.” Id. at 19 n.11. Plaintiff does not address the latter argument. The Court finds Plaintiff‘s allegations and evidence insufficient to establish standing under Title VI and Section 1557 for multiple reasons.
a. Assistance Aimed Primarily at Providing Employment
Plaintiff alleges that it would be futile for its members to apply to work at Pfizer through the Fellowship since they are white and Asian-American, and that this alleged employment discrimination violates Title VI and Section 1557 because Defendant receives federal financial assistance. See Reply at 2, 11-13; A Decl. ¶ 7 (describing desire to apply and work at Pfizer); B Decl. ¶ 7 (same). Given that Plaintiff has not alleged that Defendant receives federal financial
A plaintiff may not bring a claim under Title VI “with respect to any employment practice, employment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment.”
Courts in this Circuit routinely dismiss Title VI employment discrimination claims where the plaintiff does not satisfy this threshold requirement. See, e.g., Murphy v. Middletown Enlarged City Sch. Dist., 525 F. Supp. 678, 709 (S.D.N.Y. 1981) (finding the Title VI plaintiff
Under Section 1557‘s plain language, the same threshold requirements under Title VI apply to race discrimination claims under Section 1557. Section 1557 provides that “[t]he enforcement mechanisms provided for and available under such title VI, title IX, section 504, or such Age Discrimination Act shall apply for purposes of violations of [Section 1557].”
In other words, “the rights of action and corresponding remedies, including all of their limitations, are to be drawn from the four federal civil rights statutes listed in
Here, Plaintiff does not even allege that Defendant is “the recipient of federal funds aimed primarily at providing employment.” Bloomberg, 410 F. Supp. 3d at 625 (quoting Ass‘n Against Discrimination in Emp., Inc., 647 F.2d at 276). Nor does Plaintiff respond in its Reply to Defendant‘s argument (see Opp. at 19 n.11) that Plaintiff has failed to show this nexus. Instead, Plaintiff alleges that Defendant participates in certain public-private partnerships and receives Medicare and Medicaid reimbursements. See, e.g., Compl. ¶¶ 22-23, 25-26, 28; Gramling Decl. ¶ 8; Reply at 12-13. Indeed, as for the particular employment allegedly sought by Plaintiff‘s members, Defendant has submitted evidence that the Fellowship “does not receive, and is not funded by, any type of assistance from the federal government.” Bruce Decl. ¶ 17.
Plaintiff‘s generalized allegations of federal financial assistance are insufficient to plead that the federal funds are primarily aimed at providing employment. Therefore, Plaintiff has failed to establish standing to assert its Title VI and Section 1557 claims. See, e.g., Bloomberg, 410 F. Supp. 3d at 626 (dismissing Title VI claim because the defendant‘s generalized allegations that the plaintiff “is a recipient of federal funding . . . do not sufficiently plead the requisite ‘logical nexus‘“); Bhanusali, 2012 WL 13059694, at *8-9 (dismissing Title VI claim because the plaintiff “failed to set forth facts supporting the conclusion . . . that funds were primarily intended to provide employment” and rejecting argument that receipt of Medicare and Medicaid reimbursement “is primarily intended to provide employment” because “common
b. Principally Engaged in Providing Health Care
Because Plaintiff does not allege facts sufficient to satisfy the threshold requirement that Defendant receives federal assistance for the primary purpose of providing employment, the Court need not further consider Plaintiff‘s standing arguments under Title VI and Section 1557. Even assuming the threshold requirement was met, however, Plaintiff‘s claims still fail because it has not shown that Defendant is “principally engaged in the business of providing . . . healthcare.” Opening Br. at 11-12 (internal citation omitted); see Reply at 11-12. Plaintiff argues that, under ordinary dictionary meanings, “principally engaged” means “the primary activities” of an entity, “provide” means “to supply or make available,” and “health care” means “efforts made to maintain or restore physical, mental, or emotional well-being.” Reply at 11-12. By scribing the statutes with these definitions, Plaintiff contends that Defendant is subject to the statutes’ reach. Id. Defendant argues that the meaning of these terms, as used in Title VI and Section 1557 and defined by case law, regulations, and dictionary meaning, does not embrace a biopharmaceutical company like Defendant. Opp. at 17-18. The Court agrees with Defendant.
Title VI, under
Both parties rely on federal regulations to define applicable terms. See, e.g., Opening Br. at 11; Opp. at 17 & n. 9. Federal regulations generally define a “health care provider” as a person or entity, usually a licensed medical practitioner or facility, that renders medical treatment. See, e.g.,
Dictionary definitions of “health care provider” are consistent with Section 1557 and federal regulations. For example, Black‘s Law Dictionary defines “healthcare” as “the services provided, usu[ally] by medical professionals, to maintain and restore health.” Healthcare, Black‘s Law Dictionary (11th ed. 2019). Stedman‘s Medical Dictionary defines “provider” as a “term used by managed care organizations, referring to anyone rendering medical care, including
Here, Defendant is a global research-based company engaged in the business of the discovery, development, manufacture, marketing, sale and distribution of biopharmaceutical products. Compl. ¶¶ 12, 18; Gramling Decl. ¶ 3.10 This Court finds that such an entity is not a health care provider as that term is used in the plain text of Title VI and Section 1557, federal regulations, or dictionary definitions. Moreover, Plaintiff has cited no case, and the Court is not aware of any, that has found an entity like Defendant to be principally engaged in providing health care for purposes of Title VI and Section 1557. Rather, courts have concluded that the provision of “health care” under these statutes refers to “some form of treatment or direct assistance to individuals.” Drachman v. Bos. Sci. Corp., 258 F. Supp. 3d 207, 212 & n.7 (D. Mass. 2017) (finding that “a global Fortune 500 medical device company” is not a “health care
Plaintiff‘s remaining arguments as to why Defendant should be considered a health care provider are unavailing. Plaintiff relies on T.S. v. Heart of Cardon, LLC, 43 F.4th 737, 739 (7th Cir. 2022), to argue that Defendant‘s operations and the Fellowship “constitute a ‘health program or activity‘” under the statutes. Opening Br. at 11. In T.S., the defendant “operate[d] a skilled-nursing and assisted-living facility” and did “not dispute that its primary business is providing healthcare.” T.S., 43 F.4th at 739-40 (“CarDon does not dispute that its primary business is providing healthcare“). Here, Defendant is a biopharmaceutical company and not a nursing facility, and Defendant does dispute that it is primarily engaged in providing healthcare. Opp. at 17-18.
Finally, for the first time on Reply, Plaintiff argues that Defendant is principally engaged in providing health care because it “offers direct medical treatment to patients in its clinical trials ‘involving hundreds of thousands of people.‘” Reply at 12 (internal citation omitted). This
Finally, the parties dispute whether Defendant receives federal financial assistance “as a whole” and is therefore subject to the statutes’ reach on that basis. Plaintiff argues, among other things, that Defendant receives federal financial assistance through Medicaid and Medicare reimbursements and private-public partnerships with the federal government, which constitute assistance as “a whole.” Opening Br. at 11-13; Reply at 12-13. Defendant has submitted a declaration showing that it does not directly receive any Medicaid or Medicare reimbursements and argues that none of the alleged sources of assistance identified by Plaintiff constitute the receipt of assistance as “a whole.” Opp. at 18-19; Gramling Decl. ¶ 10 (“Pfizer does not receive any Medicare or Medicaid reimbursements directly from the federal government.“). Based on the pleadings and evidence presented, the Court finds that Defendant does not receive federal financial assistance as a whole.
As an initial matter, Title VI defines “program or activity” to mean the entire corporation where either “assistance is extended to such corporation . . . as a whole” or where the corporation “is principally engaged in the business of providing . . . health care . . . .”
“[T]he phrase ‘as a whole’ means that federal assistance is extended to the organization otherwise than for some specific purpose – put differently, that the recipient of federal funds
Plaintiff‘s allegations that Defendant participates in certain public-private partnerships – namely, Defendant‘s collaboration in the AMP and with the NIH – do not establish that Defendant receives federal financial assistance as a whole. See, e.g., Compl. ¶¶ 22-23, 25-26, 28; Gramling Decl. ¶ 8; see also Opening Br. at 13. Rather, as alleged by Plaintiff, each partnership consists of specific programs between Defendant and other entities. See, e.g., Compl. ¶¶ 25, 28.13 Plaintiff even delineates the alleged federal financial assistance by their designated programs. See Compl. ¶ 28 (listing approximate funding amounts designated for certain programs). This assistance is program-specific and, therefore, insufficient to show receipt of federal funding by Defendant‘s business “as a whole.”
Finally, Plaintiff‘s allegation that Defendant “participates in the federal health program by offering federally reimbursable products and medicines” does not establish that Defendant receives federal funding as a whole. See Compl. ¶ 20. The Second Circuit has held that the allegation that an entity‘s products are federally reimbursable is not enough to show that the entity receives federal financial assistance from those products. See T.W., 996 F.3d at 94 (finding the defendant did not receive federal financial assistance where it directly received payments from customers who could later seek federal reimbursement).
Plaintiff‘s Complaint does not allege that Defendant “actually receive[s]” money from those reimbursements. See id. Nor does Plaintiff show how receipt of money through such reimbursements would constitute federal assistance to Defendant “as a whole” and not for any
Accordingly, Plaintiff has failed to establish standing to bring claims under Title VI and Section 1557. See, e.g., Murphy, 525 F. Supp. at 709 (dismissing employment discrimination claim for lack of standing because the plaintiff failed to show the requisite nexus to “federal financial assistance“).
* * *
Because the Court finds that Plaintiff lacks Article III standing and statutory standing to bring the federal claims, the Court declines to address “the factors to be considered in deciding whether to award a preliminary injunction” and will instead deny the Motion and dismiss the case for lack of subject-matter jurisdiction. Rojas, 793 F.3d at 259 (affirming dismissal for lack of standing on a preliminary injunction motion); see Cave, 514 F.3d at 251 (remanding case for
Where a plaintiff lacks standing to bring federal claims, it is “clearly inappropriate for the district court to retain jurisdiction over the state law claims . . . .” Cave, 514 F.3d at 250 (holding that the district court should have declined supplemental jurisdiction over state law claims where it denied the plaintiff‘s preliminary injunction motion for lack of standing); see United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are dismissed before trial . . . the state claims should be dismissed as well.“). Since the Court finds Plaintiff lacks standing to bring its federal claims, the Court declines to exercise supplemental jurisdiction over Plaintiff‘s non-federal claims. See, e.g., Cave, 514 F.3d at 250-51.
CONCLUSION
For the reasons stated above, Plaintiff‘s Motion for a Preliminary Injunction is DENIED and this action is DISMISSED without prejudice for lack of subject-matter jurisdiction.
Dated: December 16, 2022
New York, New York
SO ORDERED.
JENNIFER L. ROCHON
United States District Judge