UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James E. Pietrangelo, II

v. Case No. 21-cv-124-PB Opinion No.

Christopher T. Sununu et al.

MEMORANDUM AND ORDER

James Pietrangelo has sued New Hampshire Governor

Christopher Sununu and other State of New Hampshire (“State”)

officials arising out of the State’s plan for the distribution

of COVID-19 vaccines. Before me is Pietrangelo’s request for a

preliminary injunction, wherein he seeks to enjoin the

defendants from using “race, ethnicity, or minority-group

status” as a factor in vaccine distribution. The defendants

object. Because Pietrangelo has not demonstrated that he has

standing to seek the requested relief, I deny his motion.

I. BACKGROUND

A. Factual Background

In March 2020, the World Health Organization and the

Centers for Disease Control and Prevention (“CDC”) officially

declared the novel Coronavirus Disease 2019 (“COVID-19”) a

pandemic. In response to the threat to public health and

safety, the President of the United States declared a national

emergency, and Governor Sununu declared a state of emergency in New Hampshire. To date, COVID-19 has caused approximately

553,000 deaths in the United States, and 1,249 in New Hampshire.

Since December 2020, the Food and Drug Administration has

authorized three vaccines for emergency use in the prevention of

COVID-19. Because of a limited supply, the State could not

obtain sufficient doses to inoculate its entire population at

once. To obtain federal immunization funding, the State had to

submit a vaccine allocation plan to the CDC for approval. The

State consulted several resources in preparing its plan,

including guidance and direction from the CDC and the National

Academies of Sciences, Engineering, and Medicine (NASEM).1

At the CDC’s request, NASEM assembled the Ad Hoc Committee

on Equitable Allocation of Vaccine for the Novel Coronavirus

(“Committee”). In October 2020, the Committee released a report

that offers a framework for equitable allocation of COVID-19

vaccines (“NASEM Report”). The NASEM Report cited extensive

data showing that COVID-19 has had a “disproportionate impact on

people who are already disadvantaged by virtue of their race and

ethnicity, age, health status, residence, occupation,

socioeconomic condition, and/or other contributing factors.”

Aff. of Elizabeth Talbott, Doc. No. 13-2 ¶ 27 (quoting NASEM

Report at 2). With respect to minorities, data showed that

1 NASEM is a private, nongovernmental institution that advises the nation on issues related to science and technology. 2 COVID-19 has “disproportionately affect[ed] particular racial

and ethnic minority groups, including Black, Hispanic or Latinx,

American Indian and Alaska Native, and Native Hawaiian and

Pacific Islander communities.” Doc. No. 13-2 ¶ 27 (quoting

NASEM Report at 2). Nationally, these groups have experienced

on average infection rates nearly three times higher,

hospitalization rates nearly five times higher, and mortality

rates between one and two times higher than non-Hispanic whites.

Doc. No. 13-2 ¶ 27 (citing NASEM Report at 3-4).2

The NASEM Report outlined a phased framework for vaccine

allocation that was guided by data on how to reduce deaths,

prioritize vulnerable populations, and maximize societal

benefit. In addition to the phased approach, the NASEM Report

recommended setting aside a percentage of the vaccine supply to

target vulnerable geographic areas identified through the CDC’s

Social Vulnerability Index or the more specific COVID-19

Community Vulnerability Index (“CCVI”) developed by the Surgo

Foundation. The Committee explained that those indices

“represent and attempt to incorporate the variables that the

committee believes are most linked to the disproportionate

2 New Hampshire’s figures closely track the national trend. Racial and ethnic minorities in the State have experienced on average infection rates 2.8 times higher, hospitalization rates 4.4 times higher, and mortality rates 1.5 times higher than non- Hispanic whites, after adjusting for differences in age distribution. Aff. of Kirsten Durzy, Doc. No. 13-6 ¶ 16. 3 impact of COVID-19 on people of color.” Doc. No. 13-2 ¶ 32

(quoting NASEM Report at 9).

In its guidance to the states, the CDC endorsed the NASEM

Report and echoed the Committee’s recommendations both in terms

of creating a phased vaccination program and focusing separately

on “critical populations,” including minority groups. The CDC

also suggested partnering with local agencies and organizations

to reach those populations.

Consistent with guidance from the CDC and NASEM, New

Hampshire’s vaccine allocation plan consists of two components.

The first is a phased allocation plan for distributing COVID-19

vaccines statewide, through which at least 90% of the State’s

vaccine supply is being disseminated (“general plan”). The

second is a separate “equity” allocation plan for distributing

up to 10% of the vaccine supply to “critical populations” living

in census tracts deemed most vulnerable to COVID-19 (“equity

plan”).

The general plan has three phases, with each phase split

into two sub-phases. In Phase 1a, the State distributed

vaccines to high-risk health workers, first responders, and

residents and staff of long-term care facilities. In Phase 1b,

people over the age of 65, medically vulnerable individuals at

high risk for severe illness from COVID-19, family caregivers of

medically vulnerable minors, residents and staff of residential

4 facilities for persons with intellectual and developmental

disabilities, staff of correctional facilities, and remaining

health workers became eligible for vaccination. In Phase 2a,

vaccination opened to K-12 school and childcare staff. In Phase

2b, the State offered vaccines to residents between the ages of

50 and 64. In Phase 3a, medically vulnerable individuals under

50 years old at moderate risk for severe illness from COVID-19

became eligible for inoculation. Finally, in Phase 3b, the

current phase, the State is offering vaccines to everyone else

over the age of 16.

The equity plan, launched at the same time as Phase 1b, was

designed to reach vulnerable individuals residing in census

tracts identified as at risk of disproportionate impact from

COVID-19. Following NASEM’s recommendation, the State utilized

the CCVI to identify the top 25%, or the top quartile, of the

State’s census tracts most susceptible to disparate effects from

COVID-19. Seventy-four census tracts, out of a total of 294,

were deemed eligible to partake in the equity plan.

The CCVI combines COVID-specific epidemiological risk

factors and health system capacity variables with the

sociodemographic variables from the CDC’s Social Vulnerability

Index to assess which geographic areas may be less resilient to

the impacts of the pandemic. At the time the State utilized it,

the CCVI employed database programming based on thirty-four

5 indicators grouped into six “core” themes: (1) socioeconomic

status, (2) household composition and disability, (3) minority

status and language, (4) housing type and transportation, (5)

epidemiological factors, and (6) healthcare system factors.3 All

themes were weighted equally to calculate a composite metric

3 The current version of the CCVI uses forty indicators grouped into seven themes. Minority status and language is a theme in both versions. As I discuss in the analysis section, the differences between the two versions of the index do not affect the outcome in this case. For the sake of clarity, I note that the State’s witness, Kirsten Durzy, described generally the seven-theme CCVI, see Doc. No. 13-6 ¶ 22, but an exhibit to her affidavit shows that the State relied on the six-theme CCVI. Specifically, an internal State document providing guidelines for implementing the equity plan describes themes as they appear in the six-theme CCVI and references a document discussing the methodology for the six-theme CCVI. See Ex. D to Durzy Aff., Doc. No. 13-10 at 13 (listing themes and citing for full list https://docs.google.com/document/d/1aN9BcOYoJcr7p9zRnwBHYJ_02fKD yJJavnjTl3A0JT0/edit). The State’s exhibit also includes a list of census tracts in the top quartile for vulnerability, along with a composite metric for each. See Doc. No. 13-10 at 6-8. According to Durzy, that list was based on data sourced from the CCVI’s website. See Doc. No. 13-6 ¶ 20 (citing https://previsionforcovid.org/ccvi). This website currently presents data for the seven-theme CCVI, whose composite metrics do not match the State’s metrics for the same seventy-four census tracts, and in some instances, their rankings are different. Compare Doc. No. 13-10 at 6-8, with https://covid- static-assets.s3.amazonaws.com/US-CCVI/ccvi-US.xlsx (accessed March 26, 2021). That website, however, contained data for the six-theme CCVI through December 2020, shortly before the State announced it was utilizing the CCVI in January 2021. See https://web.archive.org/web/20201201102806if_/https://precisionf orcovid.org/ccvi. The rankings and composite metrics for New Hampshire’s census tracts in the six-theme CCVI perfectly match both the State’s rankings of the most vulnerable census tracts and their composite metrics. Compare Doc. No. 13-10 at 6-8, with https://docs.google.com/spreadsheets/d/1qEPuziEpxj- VG11IAZoa5RWEr4GhNoxMn7aBdU76O5k/edit#gid=617443512. 6 that ranked each census tract relative to one another on a 0 - 1

scale, with 0 representing the least vulnerable and 1

representing the most vulnerable census tract. The most

vulnerable census tract in New Hampshire was ranked 0.922, and

the last census tract that made it into the top quartile for

vulnerability was ranked 0.248. See Ex. D to Durzy Aff., Doc.

No. 13-10 at 6-8.

To qualify for a vaccine under the State’s equity plan, a

person must “predominantly reside” in a vulnerable census tract

and must satisfy at least one of the following criteria:

identifies as a racial or ethnic minority, defined as all groups

except non-Hispanic white; is homeless; lives below the federal

poverty level; is geographically isolated; is homebound; has

physical barriers to travel; lacks a computer or reliable

internet to register for vaccination through the general plan;

lacks a medical home; has language or communication access

barriers; or has other access barriers. Doc. No. 13-10 at 1.

The State has partnered with the thirteen New Hampshire

Regional Public Health Networks (“RPHNs”), each serving a

defined public health region in the State, to distribute COVID-

19 vaccines through the equity plan. The RPHNs can distribute

vaccines in four ways. First, and primarily, the RPHNs work

with service agencies in vulnerable census tracts, such as

homeless shelters and soup kitchens, to schedule mobile clinics

7 for their clients. At such clinics, the RPHNs are not required

to ask for any identification documents. Second, the RPHNs can

schedule clinics not affiliated with one service agency, by

hosting a mobile clinic at a local site in a vulnerable census

tract familiar to the targeted populations, such as a faith or

community-based organization. The RPHNs utilize community

health or outreach workers to engage local community members in

that census tract who meet the criteria to come to the

vaccination clinic. The State directed the RPHNs to ensure that

they are serving only New Hampshire residents at such clinics,

including through pre-clinic advertising that the clinic is only

open to New Hampshire residents, asking for proof of residency

or identification at the vaccination site, or, for those who do

not have such proof, asking them where they live. Third, the

RPHNs can schedule clinics that aim to vaccinate unsheltered

homeless persons in locations where they may be living, such as

encampments. Fourth, the RPHNs may vaccinate persons referred

to them by the State who qualify for a vaccine under the

guidelines of the equity plan and require special accommodation,

such as home visits for homebound residents.

The State does not stockpile 10% of the total vaccine

supply for use as part of the equity plan. Instead, when an

RPHN schedules a clinic, it must request from the State, one

week in advance, the amount of vaccine it expects to use to

8 inoculate qualifying individuals at that clinic. The State

approves the request if it meets two requirements: (1) the

clinic will serve the targeted populations in a vulnerable

census tract, and (2) there is enough vaccine in the 10%

allocation to cover all requests that week. If the allocation

requests exceed the 10% allocation, the State works with the

RPHNs to adjust the requests. In the event that not enough

vaccine is available for everyone who wants to be inoculated at

a clinic, priority is given to those who are older, have more

comorbidities, live in multi-generational households, have

greater access barriers, have more public contact, did not have

COVID-19 within the prior ninety days, or have fewer

opportunities for vaccination through other means. Doses that

are not administered as part of the equity plan become available

to vaccinate people through the general plan.

As of February 23, 2021, sixty-two clinics in eleven public

health regions were held via the equity plan, including at

homeless shelters, senior housing locations, low-income housing

locations, community health centers, soup kitchens, rescue

missions, community agencies, and individual homes. A total of

7,107 doses were administered at those clinics, representing 4-

5% of the State’s vaccine supply. The State has never used 10%

of its vaccine supply as part of the equity plan because,

according to the State, the populations it aims to vaccinate are

9 hard to identify and reach. Again, the remaining doses backflow

into the general plan, so no vaccines are wasted or stockpiled

for later use.

B. Procedural Background

Pietrangelo is a white, 55-year-old New Hampshire resident

who wants a COVID-19 vaccine “as soon as possible.” Compl.

¶ 21. He filed this suit in February 2021, challenging the

constitutionality and legality of the State’s vaccine allocation

plan on the ground that it discriminates on the basis of race by

prioritizing minority populations. The complaint asserts that

the plan violates (1) equal protection under the Fifth and

Fourteenth Amendments to the United States Constitution, (2)

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and

(3) Title VI of Section 1557 of the Affordable Care Act,

(a).

Simultaneously with his complaint, Pietrangelo filed a

motion seeking a temporary restraining order and a preliminary

injunction. I denied the motion to the extent it requested a

temporary restraining order because Pietrangelo failed to

demonstrate that he would suffer immediate and irreparable

injury before there was time to schedule a hearing on his

request for a preliminary injunction. See Doc. No. 4. At

Pietrangelo’s request, I scheduled an expedited preliminary

10 injunction hearing, which was held on March 19. See Doc. No. 8.4

Prior to the hearing, the defendants objected to the motion and

voluntarily shared with Pietrangelo evidence concerning the

State’s vaccination efforts, which I summarized above.

At the hearing, the parties agreed that Pietrangelo lives

in Glen, a village within the Bartlett census tract (tract 9551)

in Carroll County. The defendants represented, and Pietrangelo

did not contest, that Bartlett is a very low vulnerability

census tract that does not rank within the top 25% most

vulnerable census tracts in the State.

Kirsten Durzy, MPH, testified at the hearing. She has

served in several key roles during the planning, preparation,

and implementation of the State’s vaccine allocation plan,

including as the State’s COVID-19 Equity Subject Matter Expert.

Durzy’s testimony was consistent with the evidence the State

submitted in its objection to the preliminary injunction motion.

She emphasized that geography is at the center of the equity

plan, which was designed to “look at both place [of residence]

and [individual] vulnerability.” Tr. 35. Thus, a New Hampshire

4 At the time of the hearing, Pietrangelo had not received a COVID-19 vaccine. Vaccination for his age group (Phase 2b) began on March 25. Given that vaccine appointments are now available to all age groups, presumably Pietrangelo has already received, or will receive shortly, his vaccine. I note that this would raise mootness concerns, but since the parties have not raised that issue, I do not address it. 11 resident who identifies as a minority but does not predominantly

live in one of the seventy-four vulnerable census tracts is not

eligible for vaccination through the equity plan. Tr. 35, 46.

Durzy also testified that the State does not advertise the times

and locations of clinics scheduled through the equity plan, and

she did not believe the RPHNs did so either. Tr. 47. In other

words, “the program . . . is really intended to find people,

it’s not intended for people to find the program.” Tr. 46.

II. STANDARD OF REVIEW

A preliminary injunction is “an ‘extraordinary and drastic

remedy’ that ‘is never awarded as of right.’” Voice of the Arab

World, Inc. v. MDTV Med. News Now, Inc.,

(1st

Cir. 2011) (quoting Munaf v. Geren,

(2008)). A plaintiff seeking a preliminary injunction must show

that: (1) he is likely to succeed on the merits of his claim;

(2) he is likely to suffer irreparable harm in the absence of

preliminary relief; (3) the balance of equities is in his favor;

and (4) injunctive relief is in the public interest.

Likelihood of success on the merits is the most important

factor. Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist.,

(1st Cir. 2020). “To demonstrate likelihood of

success on the merits, plaintiff[] must show more than mere

possibility of success — rather, [he] must establish a strong

likelihood that [he] will ultimately prevail.” Sindicato

12 Puertorriqueño de Trabajadores v. Fortuño,

(1st

Cir. 2012) (per curiam) (internal quotation marks omitted). If

the plaintiff cannot demonstrate that he is likely to succeed on

the merits, the request for a preliminary injunction must be

denied. Arborjet, Inc. v. Rainbow Treecare Sci. Advancements,

Inc.,

(1st Cir. 2015).

The plaintiff, as the party invoking the court’s

jurisdiction, bears the burden of establishing standing. Susan

B. Anthony List v. Driehaus,

, 158 (2014). “[E]ach

element of Article III standing ‘must be supported . . . with

the manner and degree of evidence required at the successive

stages of the litigation.’” Bennett v. Spear,

,

167–68, (1997) (quoting Lujan v. Defs. of Wildlife,

(1992)). Although neither the Supreme Court nor the

First Circuit has squarely addressed this burden at the

preliminary injunction stage, several circuit courts have held

that “the ‘merits’ on which plaintiff must show a likelihood of

success encompass not only substantive theories but also

establishment of jurisdiction,” including standing. Waskul v.

Washtenaw Cnty. Cmty. Mental Health,

, 256 n.4 (6th

Cir. 2018) (quoting Obama v. Klayman,

(D.C.

Cir. 2015) (Williams, J.)); see also Yazzie v. Hobbs,

(9th Cir. 2020). In other words, a party who seeks a

preliminary injunction “must show a ‘substantial likelihood’ of

13 standing.” Food & Water Watch, Inc. v. Vilsack,

(D.C. Cir. 2015) (quoting Klayman,

(Williams, J.)). This is so because an “affirmative burden of

showing a likelihood of success on the merits . . . necessarily

includes a likelihood of the court’s reaching the merits, which

in turn depends on a likelihood that plaintiff has standing.”

Waskul,

n.4 (internal quotation marks omitted).

“A party who fails to show a ‘substantial likelihood’ of

standing is not entitled to a preliminary injunction.” Vilsack,

.

III. ANALYSIS

The defendants argue that Pietrangelo has not shown that he

has standing to seek a preliminary injunction and that his

substantive claims lack merit. Pietrangelo disagrees on both

counts. Because I conclude that Pietrangelo has not established

a substantial likelihood of standing, I have no jurisdiction to

award him the relief he seeks and thus need not address the

parties’ remaining arguments.

Rooted in Article III’s case-or-controversy requirement,

the constitutional core of standing requires a showing that a

plaintiff “(1) suffered an injury in fact, (2) that is fairly

traceable to the challenged conduct of the defendant, and (3)

that is likely to be redressed by a favorable judicial

decision.” Spokeo, Inc. v. Robins,

, 1547

14 (2016). An injury in fact must be “concrete and particularized”

and “actual or imminent, not conjectural or hypothetical.”

Lujan,

(internal quotation marks and citations

omitted). An injury in fact is fairly traceable to the

defendant’s conduct where there is “a causal connection between

the injury and the conduct complained of” such that the injury

is not the result of “independent action of some third party not

before the court.”

(internal quotation marks

omitted). The redressability requirement entails a showing that

it is “likely, as opposed to merely speculative, that the injury

will be redressed by a favorable decision” for the plaintiff.

(internal quotation marks omitted).

The Supreme Court has rejected the notion “that every

citizen has ‘standing to challenge every affirmative-action

program on the basis of a personal right to a government that

does not deny equal protection of the laws.” United States v.

Hays,

(1995) (quoting Valley Forge Christian

Coll. v. Ams. United for Separation of Church & State, Inc.,

, 489-90 n.26 (1982)). “[E]ven if a governmental actor

is discriminating on the basis of race, the resulting injury

‘accords a basis for standing only to those persons who are

personally denied equal treatment by the challenged

discriminatory conduct.’”

at 743-44 (quoting Allen v.

Wright,

(1984) (internal quotation marks

15 omitted)). Thus, standing may not rest upon a generalized

grievance against governmental conduct of which the plaintiff

disapproves; rather, the plaintiff must show a particularized

denial of equal treatment to establish standing to sue. See

Where the plaintiff seeks prospective relief for an injury

stemming from his inability to compete for a governmental

benefit on equal footing, the plaintiff “satisfies the injury

requirement if he shows (1) a likelihood that he will compete

for the governmental benefit in question in the future, and (2)

that he will be prevented from competing on equal footing

because of the government’s discriminatory practice.” Cotter v.

City of Bos.,

(1st Cir. 2003); accord Ne. Fla.

Chapter of the Associated Gen. Contractors v. City of

Jacksonville,

(1993). In other words, the

plaintiff need not prove that he would be successful in

obtaining that benefit, but he must demonstrate that “he is

‘able and ready’ to apply for the benefit and that the

challenged ‘discriminatory policy prevents [him] from doing

so.’” Donahue v. City of Bos.,

(1st Cir.

2002) (“Donahue I”) (quoting Jacksonville,

).

The plaintiff lacks standing to seek injunctive relief from the

operation of a race-conscious program if he would not be able to

compete for the benefit in question because of race-neutral

16 requirements. See Donahue v. City of Bos.,

(1st

Cir. 2004) (“Donahue II”).

The First Circuit’s decision in Donahue II illustrates

these principles. There, a white applicant for a police officer

position with the City of Boston challenged the City’s

affirmative action program under the equal protection clause.

. The First Circuit affirmed the district court’s

decision that the plaintiff had failed to establish standing to

seek injunctive relief. The court explained that the plaintiff

was not “able and ready” to apply for appointment to the Boston

Police Department because, at the time of the district court’s

decision, he was no longer eligible for hire due to an age

restriction imposed by a state statute.

. As a

result, the plaintiff was not prevented from competing for a

position by virtue of the challenged discriminatory policy but

rather due to a race-neutral requirement that applicants be

younger than thirty-two years of age, which applied to all

applicants regardless of race. See

Pietrangelo maintains that he has an injury in fact because

(1) he is unable to apply for a COVID-19 vaccine through the

equity plan as a result of the weight that the equity plan gives

to minority status, and (2) the equity plan’s preference for

minorities has a stigmatizing effect on him as a white person.

The record before me does not support either theory of standing.

17 Pietrangelo has not demonstrated that he is “able and

ready” to participate in the equity plan but cannot do so

because of the plan’s discriminatory criteria. See

Jacksonville,

; Donahue II,

.

The equity plan is fundamentally a geography-based program that

identifies, by census tract, areas whose residents may be

eligible for vaccination. Only residents of the top 25% tracts

deemed most vulnerable to the impacts of COVID-19 may qualify

for a vaccine through the equity plan. Pietrangelo does not

live in one of those tracts. Bartlett, where he resides, is a

very low vulnerability tract that is not even close to the top

25% most vulnerable tracts. In the six-theme CCVI, Bartlett is

ranked 144th out of 294 tracts, which is near 50% for overall

vulnerability. In the seven-theme CCVI, it is ranked 195th out

of 294 tracts, falling in the bottom 50% for overall

vulnerability.5 Thus, residents of Bartlett, regardless of their

race or ethnicity, do not qualify for a vaccine through the

equity plan.

Pietrangelo has also presented no evidence that Bartlett

would qualify as a vulnerable census tract but for the State’s

5 Bartlett’s composite metric in the six-theme CCVI is 0.124, whereas the last tract in the top 25% has a composite metric of 0.248. Similarly, in the seven-theme CCVI, Bartlett’s score is 0.050, compared to the score of 0.250 for the last tract in the top quartile. 18 reliance on racial criteria. Importantly, he does not object to

the CCVI’s utilization of race-neutral themes for ranking census

tracts. Instead, he challenges the State’s reliance on the CCVI

only to the extent the index uses “minority status and language”

as a theme to identify vulnerable tracts. But he has not

produced any evidence that Bartlett would move to the top 25%

ranking if that theme were removed from the CCVI. In other

words, he has not shown that, but for the allegedly

impermissible criteria, he would be eligible to apply for a

vaccine through the equity plan. Absent such evidence, I cannot

conclude that his injury is either particularized or

redressable.

On this record, I must conclude that Pietrangelo merely has

a generalized grievance. “The rule against generalized

grievances applies with as much force in the equal protection

context as in any other.” Hays,

. In an

analogous context, the Supreme Court held in Hays that citizens

who did not live in the district that was the primary focus of

racial gerrymandering lacked standing to bring suit. See

. The Court rejected the argument that “anybody in the

State has a claim,” and reasoned that standing required

“individualized harm.”

(internal quotation marks omitted).

Pietrangelo has not demonstrated that he is likely to suffer

19 individualized harm because he is in no different position than

anyone else in the State.

Even if Pietrangelo has a concrete and particularized

injury, he had not shown that it is likely to be redressed by a

favorable court ruling. Pietrangelo does not challenge the

equity plan wholesale but only its preference for minorities.

Even if I ordered the State to stop utilizing minority status

and language as part of the CCVI algorithm, there is no evidence

that Bartlett would rank in the top quartile for vulnerability

under the remaining race-neutral themes. It is mere

speculation, then, that Pietrangelo would reside in a vulnerable

tract if the court invalidated the State’s approach. Therefore,

he has not shown that granting his request for a preliminary

injunction would redress his injury by allowing him to request a

vaccine under the equity plan.

Pietrangelo’s invocation of a stigmatizing injury fares no

better. A “stigmatizing injury” “accords a basis for standing

only to those persons who are personally denied equal treatment

by the challenged discriminatory conduct.” Allen,

(internal quotation marks and citation omitted). It does

not confer standing to those asserting only a generalized

grievance against allegedly illegal government conduct. Hays,

. Again, there is no evidence that

Pietrangelo was, or is likely to be in the future, personally

20 subjected to unequal treatment. Indeed, he is on equal footing

with minority residents of his census tract, who likewise are

not eligible to participate in the equity plan. Therefore, the

alleged stigma he claims he suffered because of the State’s use

of racial criteria in the equity plan does not satisfy the

injury in fact requirement.

Pietrangelo presents three arguments why he nonetheless has

standing. All three rest on sheer speculation. First, he

argues that a person does not have to be a resident of a

vulnerable census tract to get a vaccine through the equity

plan. In support, he points out that the State does not require

the RPHNs to verify that individuals participating in their

clinics live in a vulnerable census tract; instead, it only

requires verification of their New Hampshire residence. But the

mere fact that verification of census-tract residence is not

required does not mean that these clinics are open to all New

Hampshire residents. On the contrary, the equity plan was

designed to serve certain populations in vulnerable census

tracts, and allocation requests from the RPHNs are approved only

if they in fact propose to vaccinate people in those tracts.

Further, the way those clinics operate in practice makes it

exceedingly unlikely that individuals residing in other tracts

would be vaccinated. The RPHNs work with service agencies or

other local organizations to schedule clinics within vulnerable

21 census tracts, without widely publicizing their schedule. Any

outreach efforts occur within the targeted vulnerable tracts.

Even if it is conceivable that an RPHN may administer a

vaccine to someone residing in a non-vulnerable tract, there is

no evidence that this has ever happened. Pietrangelo has

neither attempted to get a vaccine by showing up at an equity

clinic nor demonstrated that other ineligible persons have done

so. Thus, it is both speculative and implausible that people

from non-vulnerable census tracts are utilizing the equity plan

to get their COVID-19 vaccines.

Second, Pietrangelo argues that removing discriminatory

criteria from the equity plan would lead to fewer vaccinations

as part of that plan and thus increase the number of vaccines

that flow back to the general plan. This, the argument goes,

would shorten the amount of time he has to wait for a vaccine in

the general plan queue. To the extent his argument rests on

removing minority status and language as a factor in identifying

vulnerable census tracts, he has not explained why the overall

usage of vaccines as part of the equity plan would decrease. If

anything, logic suggests that the usage would not change

substantially. Because he does not challenge the equity plan as

a whole, the plan would continue to take up to 10% of the

vaccine supply. New census tracts would replace existing ones

that are included by virtue of having a higher percentage of

22 minority residents, and populations in those new tracts would

become eligible for vaccination through the equity plan. There

is no evidence that those new tracts would have fewer residents

who qualify for a vaccine based on race-neutral criteria.

To the extent Pietrangelo argues that eliminating minority

status as a criterion for qualifying for a vaccine would

decrease the demand for vaccines within the equity plan, he

again has no evidence to back up that claim. He would have to

show, for example, that minorities who do not meet any of the

other criteria represent a high percentage of persons receiving

vaccines through the equity plan. Absent such evidence, it is

wholly speculative that precluding minorities from qualifying

solely on account of their minority status would meaningfully

impact the distribution of vaccines whereby the equity plan

would utilize significantly fewer doses, leading to higher

vaccine availability for the general plan.

Lastly, Pietrangelo maintains that he has standing because

the State is prioritizing minority residents even within the

general plan. He relies on language in the State’s interim

vaccine allocation plan and guidelines for Phase 1 that can be

read to suggest that vaccine access would be prioritized for

vulnerable geographic areas as part of the general plan. See,

e.g., Doc. No. 2-4 at 14. However, the State has submitted

evidence showing that this ambiguous language has been

23 superseded and that no such prioritizing is occurring within the

general plan. See Doc. No. 13-9; Defs.’ Ex. J. In short, the

record dispels the notion that vulnerable regions or minorities

are being put to the front of the queue in the general plan.

In sum, in the record before me, there is no evidence that

Pietrangelo would be able to apply for a vaccine but for the

allegedly discriminatory criteria. Absent such evidence, he

cannot demonstrate that he will suffer in the future a

particularized injury that is redressable by a favorable court

order. Accordingly, Pietrangelo has not met his burden of

establishing a substantial likelihood of standing to obtain

injunctive relief. See Jacksonville,

; Donahue

II, 317 F.3d at 14-15. By extension, he has not demonstrated a

likelihood of success on the merits, which dooms his request for

a preliminary injunction. See Vilsack,

.

IV. CONCLUSION

For the foregoing reasons, I deny Pietrangelo’s request for

a preliminary injunction (Doc. No. 2).

SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge

April 5, 2021

cc: James E. Pietrangelo, II, pro se Daniel E. Will, Esq. Laura E. B. Lombardi, Esq.

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