Court filing
Rutgers Opposition to TRO Motion — Children's Health Defense v. Rutgers
Filed September 14, 2021 in Childrens Health Defense v. Rutgers; one of 33 filings from this case.
Record facts
| Filed | 2021-09-14 |
|---|
No. 3:21-cv-15333-ZNQ-TJB · Doc. 20 · 2021-09-14 · Docket on CourtListener
Full text
FAEGRE DRINKER BIDDLE & REATH, LLP
Jeffrey S. Jacobson
Andrew B. Joseph
Kristen N. Roshto
600 Campus Drive
Florham Park, New Jersey 07932
(973) 549-7000
(973) 360-9831 (fax)
Jeffrey.Jacobson@faegredrinker.com
Andrew.Joseph@faegredrinker.com
Kristen.Roshto@faegredrinker.com
Attorneys for Rutgers, The State University of New Jersey, et al.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CHILDREN’S HEALTH DEFENSE, INC.,
PETER CORDI, RAELYNNE MILLER,
KAYLA MATEO, ADRIANA PINTO, JAKE
BOTHE, AND DOES 1-13,
Plaintiffs,
v.
RUTGERS, THE STATE UNIVERSITY OF
NEW JERSEY, BOARD OF GOVERNORS,
RUTGERS SCHOOL OF BIOMEDICAL
AND HEALTH SCIENCES, CHANCELLOR
BRIAN L. STROM, PRESIDENT
JONATHAN HOLLOWAY, in their official
capacities,
Defendants.
Civil Action No. 3:21-cv-15333-ZNQ-TJB
Civil Action
(Document Filed Electronically)
MEMORANDUM OF RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY,
IN OPPOSITION TO PLAINTIFF ADRIANA PINTO’S
MOTION FOR INJUNCTIVE RELIEF
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TABLE OF CONTENTS
Page
-i-
PRELIMINARY STATEMENT ............................................................................ 1
STATEMENT OF FACTS .................................................................................... 7
ARGUMENT....................................................................................................... 11
I.
Ms. Pinto Cannot Demonstrate a Likelihood of
Success on the Merits....................................................................... 12
A.
Supreme Court Case Law Flatly Precludes
Ms. Pinto’s Claims. ................................................................ 12
B.
Ms. Pinto’s Attempts to Distinguish Jacobson Fail. ............... 15
C.
New Jersey State Decisions Preclude
Ms. Pinto’s Claims, Too. ....................................................... 17
D.
Ms. Pinto’s Reliance On Non-Vaccination
Cases Is Misplaced................................................................. 19
E.
If Ms. Pinto Were To Assert an “As Applied” Challenge,
Rather Than A Facial Challenge, That, Too, Should Fail. ...... 22
II.
Ms. Pinto Cannot Establish That She Will Suffer
Irreparable Harm. ............................................................................. 24
A.
Plaintiff Sat on Her Hands. .................................................... 25
III.
The Balance of Harms and the Public Interest Favor
Vaccinating as Many People as Possible to Work Towards
Eradicating COVID-19. ................................................................... 27
CONCLUSION ................................................................................................... 29
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TABLE OF AUTHORITIES
Page(s)
CASES
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,
576 U.S. 787 (2015) ............................................................................................................ 27
Board of Education of Mountain Lakes v. Maas,
56 N.J. Super. 245 (App. Div. 1959) .................................................................................... 18
Calvary Chapel Dayton Valley v. Sisolak,
140 S. Ct. 2603 (2020) ....................................................................................................... 14
Cassell v. Snyders,
990 F.3d 539 (7th Cir. 2021) ......................................................................................... 28, 29
Chaves v. Int’l Boxing Fed’n,
No. 16-1374, 2016 WL 1118246 (D.N.J. Mar. 22, 2016) ..................................................... 26
Collins v. City of Harker Heights,
503 U.S. 115 (1992) ............................................................................................................ 21
Matter of Conroy,
98 N.J. 321 (1985) ......................................................................................................... 17, 18
Cruzan v. Director, Missouri Department of Health,
497 U.S. 261 (1990) ...................................................................................................... 19, 20
Doe v. Zucker,
No. 1:20-cv-840, 2021 WL 619465 (N.D.N.Y. Feb. 17, 2021) ............................................. 15
Doris Behr 2012 Irrevocable Tr. v. Johnson & Johnson,
No. 19-8828, 2019 WL 1519026 (D.N.J. Apr. 8, 2019) ....................................................... 26
EMSL Analytical, Inc. v. Testamerica Analytical Testing Corp.,
No. Civ. 05-5259, 2006 WL 892718 (D.N.J. Apr. 4, 2006) .................................................. 25
Gonzales v. Carhart,
550 U.S. 124 (2007) ............................................................................................................ 27
Harris v. Univ. of Mass.,
No. 21-cv-11244-DJC, 2021 WL 3848012 (D. Mass. Aug. 27, 2021) ........................... passim
Hopkins v. DiCristi,
No. 13-5490, 2014 WL 4681044 (D.N.J. Sept. 22, 2014) ..................................................... 12
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iii
Ill. Republican Party v. Pritzker,
973 F.3d 760 (7th Cir. 2020), cert. denied, 141 S. Ct. 1754 (2021) ...................................... 14
Instant Air Freight Co. v. C.F. Air Freight, Inc.,
882 F.2d 797 (3d Cir. 1989) ................................................................................................ 12
Jacobson v. Massachusetts,
197 U.S. 11 (1905) ....................................................................................................... passim
Klaassen v. Trs. of Ind. Univ.,
7 F.4th 592 (7th Cir. 2021) ........................................................................................... passim
Klaassen v. Trs. of Ind. Univ.,
No. 1:21-CV-238, 2021 WL 3073926 (N.D. Ind. July 18, 2021) ................................... passim
Lanin v. Borough of Tenafly,
No. 12-3399, 2013 WL 936363 (3d Cir. Mar. 12, 2013) ...................................................... 25
Levine v. BlockFi Inc.,
No. 21-11934, 2021 WL 3508831 (D.N.J. Aug. 9, 2021) ..................................................... 26
New State Ice Co. v. Liebmann,
285 U.S. 262 (1932) (Brandeis, J., dissenting) ..................................................................... 27
Norris v. Stanley,
No. 1:21-cv-756, 2021 WL 3891615 (W.D. Mich. Aug. 31, 2021) ...................................... 15
Norwegian Cruise Lines Holdings, Ltd. v. Rivkees,
No. 21-22492-CIV-WILLIAMS, 2021 WL 3471585 (S.D. Fla. Aug. 8, 2021) ..................... 15
Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm.
Co.,
290 F.3d 578 (3d Cir. 2002) ................................................................................................ 11
Oburn v. Shapp,
521 F.2d 142 (3d Cir. 1975) ................................................................................................ 25
Rogers v. Corbett,
468 F.3d 188 (3d Cir. 2006) ................................................................................................ 12
Roman Cath. Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) (per curiam) .............................................................................. 5, 14, 28
Ryan v. Temple Univ.,
No. 5:20-cv-2164-JMG, 2021 WL 1581563 (E.D. Pa. Apr. 22, 2021) .................................... 7
Sadlock v. Carlstadt Board of Education,
137 N.J.L. 85 (1948) ..................................................................................................... 18, 19
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South Bay United Pentecostal Church v. Newsom,
140 S. Ct. 1613 (2020) ........................................................................................................ 14
United States v. Lopez,
514 U.S. 549 (1995) ........................................................................................................... 27
W.D. v. Rockland County,
19 Civ. 2066 (JCM), 2021 WL 707065 (S.D.N.Y. Feb. 22, 2021) ........................................ 15
Warner Lambert Co. v. McCrory’s Corp.,
718 F. Supp. 389 (D.N.J. 1989) ........................................................................................... 26
Washington v. Glucksberg,
521 U.S. 702 (1997) ...................................................................................................... 20, 21
Washington v. Harper,
494 U.S. 210 (1990) ............................................................................................................ 20
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ................................................................................................................ 28
Zucht v. King,
260 U.S. 174 (1922) .............................................................................................................. 5
STATUTES, RULES & REGULATIONS
Act of Nov. 16, 1988, L. 1988, c. 158, § 1 ................................................................................. 16
Higher Education Restructuring Act of 1994, L. 1994, c. 48, § 81 ............................................. 16
N.J.A.C. § 8:57-6.1 ............................................................................................................. 15, 16
N.J.A.C. §§ 8:57-6.5 to 6.8 .......................................................................................................... 2
N.J.A.C. § 8:57-6.16 ................................................................................................................. 22
N.J.A.C. § 8.57-6.4 ..................................................................................................................... 2
N.J.S.A. § 18A:61D-1 .......................................................................................... 2, 13, 15, 16, 22
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PRELIMINARY STATEMENT
New Jersey law has long required all higher education students, including
students at Rutgers, the State University of New Jersey (“Rutgers”), to be vaccinated
against certain diseases and to provide proof of vaccination as a condition of
continued enrollment. Plaintiff/Movant Adriana Pinto’s request for an injunction
fails to address this statute, and she effectively asks the Court to create a new, extra-
statutory exemption to the legal requirement that all students must be vaccinated.
Ms. Pinto does not advance any reasonable legal theory that supports her claim.
Instead, she argues that Rutgers’ enforcement of its state-mandated vaccination
policy is unfair to her and that Rutgers must modify it to accommodate her individual
intention to avoid coming to campus. The Court should deny her request. Although
Ms. Pinto may want Rutgers to exempt students from immunization requirements
simply because the class(es) they have chosen currently are meeting remotely, she
has no legal right to such an exemption.
To the extent Ms. Pinto is asserting a facial constitutional challenge to the
longstanding requirement that students must show proof of vaccinations, now
including a COVID-19 vaccination, to matriculate for the Fall 2021 semester, that
challenge has no likelihood of success. As Ms. Pinto’s Complaint acknowledges,
the United States Supreme Court, in Jacobson v. Massachusetts, 197 U.S. 11 (1905),
rejected a constitutional challenge to a state requirement for every resident to take a
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smallpox vaccine. Jacobson remains good law. In recently denying an injunction
request very similar to Ms. Pinto’s, the United States Court of Appeals for the
Seventh Circuit said that upholding a university’s vaccine mandate is “easier than
Jacobson” because (1) the university’s mandate “has exceptions for persons who
declare vaccination incompatible with their religious beliefs and persons for whom
vaccination is medically contraindicated,” and (2) “[p]eople who do not want to be
vaccinated may go elsewhere,” to a school that is not requiring COVID-19 vaccines.
Klaassen v. Trs. of Ind. Univ., 7 F.4th 592, 593 (7th Cir. 2021). Ms. Pinto’s case, in
turn, is even easier than Klaassen because Rutgers added COVID-19 to its required
vaccinations pursuant to express statutory authority.
For at least 33 years, since the enactment of N.J.S.A. § 18A:61D-1, New
Jersey law has obligated Rutgers and all other institutions of higher education in the
state to require every student to be vaccinated against certain diseases and to provide
proof of vaccination as a condition of admission or continued enrollment. A series
of New Jersey Department of Health (“NJDOH”) regulations, N.J.A.C. §§ 8:57-6.5
to 6.8, mandate Rutgers to require measles, mumps, rubella, and other vaccinations.
Ms. Pinto, like all 70,000 of her fellow Rutgers students, has complied with that
statutory requirement each semester she has attended Rutgers. A different
regulation, N.J.A.C. § 8.57-6.4, gives each institution “authority…to establish
additional requirements for student immunizations and documentation that such
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institution shall determine appropriate and which is recommended by” the federal
Advisory Committee on Immunization Practices (“ACIP”). The three COVID-19
immunizations available in the United States—those manufactured by Pfizer-
BioNtech, Moderna, and Johnson & Johnson/Janssen—are all ACIP-recommended.
New Jersey law thus gave Rutgers the express authority to add a COVID-19 vaccine
to those which students, unless exempt for religious or medical reasons, must
provide proof of having taken as a condition of admission or continued enrollment.
Nearly six months ago, on March 25, 2021, Rutgers exercised that lawful
authority. It advised all students, except those enrolled in fully-online degree
programs, that they would have to submit proof of an approved COVID-19
immunization (as well as all other required vaccinations) to matriculate for the Fall
2021 semester. Although some professors are still teaching remotely, at least for
now, Rutgers told all of its 70,000 non-online degree students—in other words, all
fully matriculated students who receive Rutgers student identification and have
access to campus facilities—that selecting putatively remote classes would not
excuse them from their responsibility to submit proof of all required immunizations.
By the time Ms. Pinto enrolled for the Fall 2021 semester and selected a class
that currently is meeting remotely, Rutgers already had told her she would not be
able to take that class without providing proof of all required immunizations. State
law allows students to obtain a religious exemption, but Ms. Pinto admits she has no
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religious objection to vaccines. State law also allows students to obtain a medical
exemption if a physician states that a vaccine is contraindicated for them, but Ms.
Pinto has not sought a medical exemption.
The Supreme Court’s ruling in Jacobson, and recent precedent applying and
reinforcing Jacobson, demonstrate that Ms. Pinto has no likelihood of success in a
facial challenge to a university’s vaccine mandate. “[V]accination requirements,
like other public-health measures, have been common in this nation.” Klaassen, 7
F.4th at 593. “Health exams and vaccinations against other diseases (measles,
mumps, rubella, diphtheria, tetanus, pertussis, varicella, meningitis, influenza, and
more) are common requirements of higher education.” Id. “Given Jacobson, …
which holds that a state may require all members of the public to be vaccinated
against smallpox, there can’t be a constitutional problem with [mandating]
vaccination against [COVID-19].” Id. “If conditions of higher education may
include surrendering property [(i.e., tuition and fees)] and following instructions
about what to read and write, it is hard to see a greater problem with medical
[requirements] that help all students remain safe when learning.” Id. at 594.
“[T]he Supreme Court has ‘settled that it is within the police power of a state
to provide for compulsory vaccination,’ which the state may delegate to local
officials and others ‘vested with broad discretion in matters affecting the application
and enforcement of the law.’” Harris v. Univ. of Mass., No. 21-cv-11244-DJC, 2021
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WL 3848012, at *6 (D. Mass. Aug. 27, 2021), quoting Zucht v. King, 260 U.S. 174,
176 (1922) (brackets omitted). In Harris, as in Klaassen, the court rejected a
student’s challenge to a university’s COVID-19 vaccine mandate. “Curbing the
spread of COVID-19 is ‘unquestionably a compelling interest.’” Id., quoting Roman
Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam). The
Harris court both denied injunctive relief and dismissed the students’ case.
Rutgers imposed the same lawful requirement on Ms. Pinto and all of her
fellow students as the universities in Klaassen and Harris. Ms. Pinto and all of her
fellow students previously followed Rutgers’ vaccination requirements. Ms. Pinto
simply decided she did not want to satisfy the immunization requirement this
semester and, as a result, she is not a student in good standing at Rutgers. She is not
entitled to access to Rutgers resources, including its computer network.
In a separate attempt to spare herself from the immunization requirement even
if the mandate itself is lawful (which it is), Ms. Pinto tries to procure for herself an
extra-statutory exemption from the immunization requirement. She highlights that
she has (1) elected to enroll in only a single class which the professor currently is
teaching remotely rather than in a Rutgers classroom; and (2) self-attested that she
will not come to campus. Ms. Pinto, however, is not enrolled in a fully online degree
program, students in which are neither expected to visit the campus nor granted
access to restricted areas of the campus. Nor is the class Ms. Pinto selected even
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offered in any Rutgers fully online degree program. She is in possession of a Rutgers
student identification that allows her access to campus facilities, and Rutgers has no
means to police promises by Ms. Pinto or anyone else to avoid the campus. “A
university will have trouble operating when each student fears that everyone else
may be spreading disease.” Klaassen, 7 F.4th at 594. The Court should not order
Rutgers to create and manage a new class of students based on self-attestations.
For all these reasons, Ms. Pinto has no likelihood of success on her substantive
claims and therefore cannot meet the first and most important requirement for
obtaining injunctive relief. Indeed, Rutgers will shortly seek dismissal of her lawsuit
for failure to state a claim upon which relief may be granted. If the Court elects to
review the other injunction factors, the balance of harms also tilts decidedly away
from Ms. Pinto’s desire to create an extra-statutory exemption for herself and toward
her fellow students’ interest in maximizing the safety of the university campus, as
held in Klaassen and Harris. Further, to the extent Ms. Pinto portrays her situation
as “emergent,” it is only an emergency of her own making. She knew about the
mandate five months before she sought injunctive relief. Rutgers offered the same
class Ms. Pinto wishes to take now during its summer 2021 session, when she would
not have been required to provide proof of a COVID-19 vaccination. And Ms.
Pinto’s counsel ignored for a month Rutgers’ July 29 offer to discuss her situation.
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As to the final factor for injunctive relief, public interests weigh heavily
against the issuance of an injunction. To support her position, Ms. Pinto relies on
unsubstantiated claims promoted by the anti-vaccination group, Children’s Health
Defense, Inc. (“CHD”), which appears as the first plaintiff listed in the Complaint.
Ms. Pinto stresses that two of the three ACIP-approved vaccines have only
emergency use authorization (“EUA”) from the Food and Drug Administration
(“FDA”), but she ignores that the United States Department of Justice issued an
opinion on July 6, 2021, that the vaccines’ EUA status “does not prohibit entities
from imposing [COVID-19] vaccination requirements.”1 Ms. Pinto’s motion also
ignores that the FDA granted full approval to the Pfizer vaccine on August 23, before
she sought injunctive relief. That means she could have satisfied her vaccination
requirement before classes began by taking a fully approved immunization.
Ms. Pinto’s motion does not satisfy any of the requirements for interim
injunctive relief. The Court should deny it.
STATEMENT OF FACTS
“[A]s with essentially every other aspect [of] our lives over the past year, the
college experience has not been immune from the depredation of the COVID-19
pandemic.” Ryan v. Temple Univ., No. 5:20-cv-2164-JMG, 2021 WL 1581563, at
1 Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from
Requiring the Use of a Vaccine Subject to an Emergency Use Authorization, 45 Op.
O.L.C. __, 2 (July 6, 2021), https://www.justice.gov/olc/file/1415446/download.
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*1 (E.D. Pa. Apr. 22, 2021). On March 25, 2021, with the expectation that COVID-
19 immunizations would shortly become available to all adults in the United States,
with or without comorbidities, Rutgers announced that it would add the COVID-19
vaccination to the list of required immunizations for the Fall 2021 semester. Our
Path Forward – COVID-19 Vaccination and the Fall Term, Office of the President
(Mar. 25, 2021), https://www.rutgers.edu/president/our-path-forward.2
By announcing its decision to mandate the COVID-19 vaccine well in
advance of the mandate’s effective date, Rutgers gave students plenty of time to
prepare or consider whether any opposition to vaccination warranted a decision to
pursue their education at another institution. In exempting from vaccine mandates
students in “fully-online programs,” Rutgers expressly limited that exception to
programs “typically defined as having no access to on-campus facilities.” Id.
Two months after Rutgers announced this Fall 2021 requirement, Ms. Pinto
and other Rutgers undergraduates completed the Spring 2021 semester. Ms. Pinto
2 Ms. Pinto’s Complaint alleges that in January 2021, Rutgers “announced that it
would not require COVID-19 vaccines.” (Compl. ¶ 169.) She claims that Vicente
Gracias, a Rutgers official, “assured viewers [in a video] that Rutgers would not
mandate COVID-19 vaccines.” (Id. ¶ 170.) That is false. The video is available at
https://vimeo.com/502384549/10286f6cb1?utm_campaign=5370367&utm_source
=affiliate&utm_channel=affiliate&cjevent=ea9051b9045311ec80c547850a82b838
&clickid=ea9051b9045311ec80c547850a82b838. At the 7:30 mark of the video,
Dr. Gracias speculated that Rutgers might not mandate the vaccine. He made no
promise that Rutgers could not or would not exercise its statutory authority to add a
COVID-19 vaccination to the list of vaccinations that non-exempt students already
had to take as a condition of admission to or continued enrollment at Rutgers.
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seems to be under the mistaken impression that, following her Spring 2021 work,
she needs to retake just one class in order to receive her undergraduate degree and
to satisfy the requirements of a major in Psychology. (See Declaration of Plaintiff
Adriana Pinto (“Pinto Decl.”) ¶ 7.) In fact, as explained below, Ms. Pinto is two
classes short of her graduation requirements. (See Declaration of Susan Lawrence
(“Lawrence Decl.”) ¶¶ 3-4.) As for the single class Ms. Pinto registered to retake
for Fall 2021, Rutgers offered it during the summer 2021 session, when she would
not have been subject to the COVID-19 vaccine mandate, and at one point Ms. Pinto
apparently intended to take the class over the summer. (See id. ¶¶ 6-7.) Instead, Ms.
Pinto waited to sign up to take the class in the fall, knowing she would have to meet
the Fall 2021 immunization requirements. (See id. ¶ 7.)
Ms. Pinto contends she did not realize the mandate would apply to her if she
selected a section of a class that the professor indicated would be taught remotely.
(See Pinto Decl. ¶ 8.) As noted above, however, Rutgers addressed this subject
clearly in its March 25 announcement. It also did so again, repeatedly, in subsequent
communications to students. A July 20, 2021 email to all students, for example,
with the subject line “Reminder for Students re COVID-19 Vaccination
Requirement,” read as follows:
Additionally, there has been some confusion over the
exemption policy for students in online degree programs.
That exemption applies only to fully online degree programs.
These are programs that only offer online courses and did so
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pre-pandemic. The vaccine requirement applies to all
undergraduate students and to all graduate students in
programs that traditionally offer in-person courses regardless
of the mix of online and in-person courses for which they
register for the fall semester.
(Ex. A to Declaration of Kristen Roshto (“Roshto Decl.”).)
On Friday, July 23, 2021, Ms. Pinto’s counsel sent a letter to the general
counsel of Rutgers. (See Roshto Decl. Ex. B.) Counsel said he was sending the
letter “[o]n behalf of my two nieces and about a dozen other students who are
enrolled at Rutgers,” none of whom he named. (Id.) His letter acknowledged
Rutgers’ communications that students who are taking remote classes, but who are
not enrolled in “fully on-line degree granting programs,” are subject to all
vaccination requirements, but he contended that his unnamed niece had a “mistaken
belief” that she could avoid the requirement by “select[ing] a fully remote schedule.”
(Id.)
Rutgers acknowledged this letter less than four hours after counsel sent it.
Deputy General Counsel Stephen Nolan emailed Ms. Pinto’s counsel and said “[w]e
anticipate being able to get back to you sometime next week.” (Roshto Decl. Ex.
C.) Ms. Pinto’s counsel replied “[t]hank you.” (Id.) On July 29, as promised, Mr.
Nolan emailed counsel again and suggested a telephone conversation to discuss the
still-unnamed clients’ concerns. (See id.) But Ms. Pinto’s counsel did not respond.
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On August 24, 2021—after he had sued Rutgers on behalf of CHD and its
fellow plaintiffs—Ms. Pinto’s counsel sent the following note to Mr. Nolan:
I am just seeing now for the first time that you emailed me
below. I apologize that I missed this communication but
my inbox is completely overloaded these days, as you can
imagine. In any event, it is no excuse, I hope you will
accept my apology and if you are still willing to engage in
a conversation, I am happy to schedule a call with you that
is mutually convenient. [Id.]
The premise of Ms. Pinto’s motion for emergency relief is that if she cannot
retake Quantitative Methods in Psychology during the Fall 2021 semester, she
cannot graduate at the end of the semester. (See Pinto Decl. ¶ 9.) That class,
however, is not Ms. Pinto’s only remaining requirement. Even once Ms. Pinto
retakes Quantitative Methods, she will not have accumulated a sufficient number of
academic credits to graduate with a major in Psychology. (See Lawrence Decl. ¶¶ 5,
8.) Ms. Pinto also must complete at least one more three-credit Psychology class at
the “400” level. (Id. ¶¶ 4-5, 8.) Ms. Pinto did not register for such a class for the
Fall 2021 semester and it is too late for her to do so now. (Id. ¶ 9.) Accordingly,
she cannot complete her degree requirements this semester under any circumstances.
ARGUMENT
“[A]n injuction is ‘an extraordinary remedy, which should be granted only in
limited circumstances.’” Novartis Consumer Health, Inc. v. Johnson & Johnson-
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Merck Consumer Pharm. Co., 290 F.3d 578, 586 (3d Cir. 2002), quoting Instant Air
Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989).
The test for preliminary relief is a familiar one. A party
seeking a preliminary injunction must show that (1) it has
a likelihood of success on the merits, (2) it will suffer
irreparable harm if the injunction is denied, (3) granting
preliminary relief will not result in even greater harm to
the nonmoving party, and (4) the public interest favors
such relief.
Rogers v. Corbett, 468 F.3d 188, 192 (3d Cir. 2006) (citation omitted). The test for
a temporary restraining order is identical. See Hopkins v. DiCristi, No. 13-5490,
2014 WL 4681044, at *1 (D.N.J. Sept. 22, 2014).3
I.
Ms. Pinto Cannot Demonstrate a Likelihood of Success on the Merits.
A.
Supreme Court Case Law Flatly Precludes Ms. Pinto’s Claims.
The Supreme Court, in Jacobson, upheld against a constitutional challenge a
law imposing a fine on any adult who did not consent to be vaccinated against
smallpox. See Jacobson, 197 U.S. at 12. The Supreme Court concluded that it was
not for judges “to determine which of two modes was likely to be the most effective
for the protection of the public against disease.” Id. at 30. So long as the law bears
a “real or substantial relation” to protecting public health and is not “beyond all
3 Ms. Pinto styled her motion as seeking a temporary restraining order, but given
other developments in the case since Ms. Pinto filed her motion, and the amount of
time that has passed, the Court may wish to convert the motion to one seeking a
preliminary injunction. Either way, the controlling legal standard is the same.
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question, a plain, palpable invasion of rights secured by the fundamental law,” courts
must uphold the laws enacted by the political branches. Id. at 31. That is because
the State may impose requirements “which, according to the common belief of the
people, are adapted to prevent the spread of contagious diseases.” Id. at 35. The
Supreme Court presciently predicted today’s debate, too: “The fact that the belief [in
the efficacy of the method chosen] is not universal is not controlling, for there is
scarcely any belief that is accepted by everyone.” Id.
As the Seventh Circuit held in Klaassen, if Massachusetts can impose a no-
exception vaccine mandate for all citizens, it is hard to see a basis for university
students to assert a constitutional challenge to their school’s vaccine mandate. See
Klaassen, 7 F.4th at 593. A university’s mandate applies only to people who have
chosen that school, and both Rutgers’ mandate and Indiana University’s mandate at
issue in Klaassen allow for both religious and medical exemptions. See id. Rutgers’
decision, moreover, is even less susceptible to constitutional scrutiny than the one
considered in Klaassen because (although Ms. Pinto’s Complaint ignores N.J.S.A.
§ 18A:61D-1 and its implementing regulations) Rutgers had express statutory
authority to add COVID-19 vaccines to its required immunization list, and cited
those legal provisions when doing so. Rutgers’ citation to its legal authority in its
policy document makes the omission of this legal authority from CHD’s and Ms.
Pinto’s Complaint all the more remarkable.
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Ms. Pinto’s Complaint (at ¶ 9) does acknowledge Jacobson, but she contends
that a “new landscape” means courts “must modify or overrule this precedent.” (See
also id. ¶ 214 (contending that Jacobson “is open to legitimate question”).) The
Supreme Court has addressed Jacobson on several occasions during the COVID-19
pandemic, however, each time leaving Jacobson’s core principle of deference to
vaccine mandates undisturbed. See Roman Cath. Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63, 70 (2020) (Gorsuch, J., concurring) (“Although Jacobson pre-dated
the modern tiers of scrutiny, this Court essentially applied rational basis review
. . . .”); Ill. Republican Party v. Pritzker, 973 F.3d 760, 763 (7th Cir. 2020), cert.
denied, 141 S. Ct. 1754 (2021) (“The district court appropriately looked to Jacobson
for guidance, and so do we”). None of the Justices, even in dissent, has taken issue
with Jacobson’s holding that a government may require immunizations or authorize
its instrumentalities to do so. See, e.g., Calvary Chapel Dayton Valley v. Sisolak,
140 S. Ct. 2603, 2608 (2020) (Alito, J., dissenting from denial of application for
injunctive relief in case addressing limits on in-person religious gatherings); South
Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts,
C.J., concurring in denial of application for injunctive relief in case addressing limits
on all public gatherings). Ms. Pinto therefore cannot put forward any reasonable
argument that the Supreme Court has cast doubt on Jacobson’s continuing validity.
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Unsurprisingly, given the clear and controlling authority of Jacobson, the
handful of people attempting to challenge educational vaccine mandates have batted
zero. In addition to the decisions in Klaassen and Harris—the latter of which also
yielded an order dismissing the underlying lawsuit—challenges like Ms. Pinto’s
failed in Norris v. Stanley, No. 1:21-cv-756, 2021 WL 3891615 (W.D. Mich. Aug.
31, 2021); W.D. v. Rockland County, 19 Civ. 2066 (JCM), 2021 WL 707065
(S.D.N.Y. Feb. 22, 2021) (parents have no constitutional right to send unvaccinated
child to school); and Doe v. Zucker, No. 1:20-cv-840 (BKS/CFH), 2021 WL 619465
(N.D.N.Y. Feb. 17, 2021) (rejecting challenge that school district imposed too-
burdensome requirements to obtain medical exemption to vaccine mandate). Cf.
Norwegian Cruise Lines Holdings, Ltd. v. Rivkees, No. 21-22492-CIV-WILLIAMS,
2021 WL 3471585, at *14 (S.D. Fla. Aug. 8, 2021) (stating that “courts have
suggested that the unvaccinated population is not a protected class that enjoys a
fundamental Constitutional right to remain unvaccinated,” citing Jacobson and the
lower court decision in Klaassen, No. 1:21-CV-238, 2021 WL 3073926 (N.D. Ind.
July 18, 2021)). Ms. Pinto’s challenge should meet the same fate.
B.
Ms. Pinto’s Attempts to Distinguish Jacobson Fail.
Only by pretending that Rutgers had no statutory and regulatory basis for
adding a COVID-19 vaccination requirement, rather than acknowledging N.J.S.A.
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§ 18A:61D-1 (which has been on the books since 1989)4 and N.J.A.C. § 8:57-6.1,
could Ms. Pinto contend, falsely, that Rutgers acted without statutory authority, so
Jacobson should not apply. (See Compl. ¶¶ 73, 78, 186, 250-51.) This argument
has its facts wrong, obviously, but also misapprehends the law. Indiana University
does not have the same kind of specific authority possessed by Rutgers, but the
plaintiffs’ challenge in Klaassen failed anyway because the university was a state
instrumentality and “states and their authorized arms have historically adopted
vaccination mandates.” Klaassen, 2021 WL 3073926, at *19. As the Seventh
Circuit explained when hearing the plaintiffs’ appeal in Klaassen:
We assume with plaintiffs that they have a right in bodily
integrity. They also have a right to hold property. Yet
they or their parents must surrender property to attend
Indiana University. Undergraduates must part with at least
$11,000 a year (in-state tuition), even though Indiana
could not summarily confiscate that sum from all residents
of college age.
Other conditions of enrollment are normal and proper.
The First Amendment means that a state cannot tell
anyone what to read or write, but a state university may
demand that students read things they prefer not to read
and write things they prefer not to write. . . .
If conditions of higher education may include surrendering
property and following instructions about what to read and
4 The original statute mandated university vaccine requirements “in accordance with
regulations promulgated by the State Board of Higher Education.” See Act of Nov.
16, 1988, L. 1988, c. 158, § 1. The statute was amended in 1994 to mandate those
conditions “in accordance with regulations promulgated by the Department of
Health.” See Higher Education Restructuring Act of 1994, L. 1994, c. 48, § 81.
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write, it is hard to see a greater problem with medical
conditions that help all students remain safe when
learning.
Klaassen, 7 F.4th at 593-94 (citations omitted); see also Harris, 2021 WL 3848012,
at *6 (University of Massachusetts’s COVID-19 vaccine mandate “poses even fewer
constitutional concerns than in Jacobson, . . . as students may seek exemptions, opt
to take online classes or defer their enrollment for the semester.”).
C.
New Jersey State Decisions Preclude Ms. Pinto’s Claims, Too.
Ms. Pinto’s challenge under Article 1 of the New Jersey State Constitution
fares no better. (See generally Compl., Second Claim for Relief.) The New Jersey
Supreme Court has recognized that “a competent adult person generally has the right
to decline to have any medical treatment initiated or continued.” Matter of Conroy,
98 N.J. 321, 347 (1985). But our Supreme Court also stated in Conroy that
“[w]hether based on common-law doctrines or on constitutional theory, the right to
decline life-sustaining medical treatment is not absolute” and “may yield to
countervailing societal interests in sustaining the person’s life.” Id. at 348. Some
decisions, including vaccination against a virus that has become pandemic, affect
others beyond the decision-maker. That is why one of the countervailing societal
interests that can override a person’s individual medical decisions is the need to
“protect[] innocent third parties.” Id. at 353. Specifically, “[w]hen the patient’s
exercise of his free choice could adversely and directly affect the health, safety, or
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security of others, the patient’s right of self-determination must frequently give
way.” Id. (collecting cases, including Jacobson).
Just as Jacobson upheld a state vaccination mandate against a federal
constitutional challenge, the New Jersey Supreme Court upheld a public school
vaccination mandate against both a federal and New Jersey State Constitution-based
challenge. In Sadlock v. Carlstadt Board of Education, 137 N.J.L. 85, 86-87 (1948),
our Supreme Court turned aside challenges based on religious liberty and equal
protection. “The principle is too well established to require citation that the so-called
constitutional liberties are not absolute, but are relative only. They must be
considered in the light of the general public welfare. To hold otherwise would be to
place the individual above the law.” Id. at 91. The Court also observed “that the
question of the desirability or efficacy of compulsory vaccination…and whether it
is wise or unwise is strictly a legislative and not a judicial question.” Id. at 87.
Similarly, in Board of Education of Mountain Lakes v. Maas, 56 N.J. Super.
245, 267 (App. Div. 1959), the Appellate Division rejected the argument that
because smallpox and diphtheria had not been seen in New Jersey for a decade,
immunization should no longer be required. “The absence of an existing emergency
does not warrant a denial to the regulative agency of the exercise of preventive
means. [Officials] need not await an epidemic, or even a single sickness or death,
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before [they] decide[] upon action to protect the public. To hold otherwise would
be to destroy prevention as a means of combatting the spread of disease.” Id.5
D.
Ms. Pinto’s Reliance On Non-Vaccination Cases Is Misplaced.
Ms. Pinto’s motion fails to acknowledge the holdings of Jacobson, Sadlock,
and their progeny that the constitutional right to refuse medical treatment is not
absolute and must yield to the public interest of defeating a deadly viral pathogen
through vaccination. Ms. Pinto, like the failed injunction-seekers in Klaassen and
Harris, cites cases dealing with other kinds of medical treatment, not vaccines. Even
in those very cases, however, the Supreme Court cited and reaffirmed Jacobson.
Ms. Pinto relies on Cruzan v. Director, Missouri Department of Health, 497
U.S. 261, 265-66 (1990), which addressed whether parents could terminate life-
sustaining medical treatment to their daughter, who had fallen into “a persistent
vegetative state.” The Supreme Court assumed that there exists “a constitutionally
protected right to refuse lifesaving hydration and nutrition,” but balanced that
interest against the government’s interest in the “preservation of human life,” which
5 Ms. Pinto’s motion echoes the baseless allegation in her Complaint that because
Rutgers is involved in medical research, and participated in trials of COVID-19
vaccines, Rutgers stands to benefit financially from requiring students to take the
vaccine. (Pl.’s Br. at 10 n.3; Compl. ¶ 215.) Plaintiffs cite nothing to support this
gratuitously insulting charge, and even were it somehow true—which, of course, it
is not—this would not alter the conclusion that New Jersey possesses a rational basis
to permit Rutgers and other institutions of higher education to mandate any ACIP-
recommended vaccines.
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it sought to achieve by imposing upon the parents a clear and convincing standard
of proof. Id. at 279-82. Cruzan, therefore, did not recognize an absolute right to
refuse medical treatment, and certainly did not recognize such a right when the
health and safety of the community at large are involved. In fact, Cruzan cited
Jacobson approvingly as a case where the Court sided with “the State’s interest in
preventing disease.” Id. at 278.
Equally flawed is Ms. Pinto’s reliance on Washington v. Harper, 494 U.S. 210
(1990). Harper considered a prisoner’s liberty interest in avoiding the forced
administration of antipsychotic drugs. Id. at 213. The Supreme Court had “no
doubt” that the prisoner had such a liberty interest, but held that it had to be balanced
against “the [s]tate’s interest in prison safety and security,” and authorized the forced
medication. Id. at 221-27. The Court did not consider issues other than prisoners’
rights and did not mention Jacobson or immunization requirements.6
The failed movants in Klaassen and Harris also cited Washington v.
Glucksberg, 521 U.S. 702, 720 (1997), a physician-assisted suicide case. The
6 As held by the district court in Klaassen, 2021 WL 3073926, at *23, “[t]he
Supreme Court has assumed (using its word) and strongly suggested that individuals
have a constitutional right to refuse unwanted medical treatment,” but also that “this
liberty interest has remained confined either by duly enacted and constitutional state
laws or the state’s legitimate interest that it had rationally pursued in regulation.” Id.
Klaassen recognized that neither Cruzan nor Harper established a fundamental right
to refuse a mandated vaccine, and in no event applied anything more than rational
basis scrutiny. Id.
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Supreme Court recognized that in Glucksberg that the Due Process Clause “provides
heightened protection against government interference with certain fundamental
rights and liberty interests.” But the Supreme Court was “reluctant to expand the
concept of substantive due process because guideposts for responsible
decisionmaking in this uncharted area are scarce and open-ended,” and courts avoid
transforming “the liberty protected by the Due Process Clause . . . into the policy
preferences of the Members of [the Supreme] Court.” Id., quoting Collins v. City of
Harker Heights, 503 U.S. 115, 125 (1992). Accordingly, “heightened protection”
of substantive due process applies only to “concrete examples involving
fundamental rights found to be deeply rooted in our legal tradition.” Id. at 720, 722.
Government actions implicating rights not meeting that threshold merely require “a
reasonable relation to a legitimate state interest to justify the action”—in other
words, rational basis review. See id. at 722. Justice Stevens referenced Jacobson in
his concurring opinion, noting that “[i]n most cases, the individual’s constitutionally
protected interest in his or her own physical autonomy, including the right to refuse
unwanted medical treatment, will give way to the State’s interest in preserving
human life.” Id. at 742 (Stevens, J., concurring).
Individually and collectively, these cases preclude Ms. Pinto from mounting
a successful facial challenge to immunization requirements.
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E.
If Ms. Pinto Were To Assert an “As Applied” Challenge, Rather Than
A Facial Challenge, That, Too, Should Fail.
Just as Ms. Pinto cannot succeed in a challenge against the mandate as a
whole, she cannot succeed in a challenge against the mandate as applied to her
specifically. Although Ms. Pinto asserts that she has “struggled with [her] health,”
(Pinto Decl. ¶ 4), she does not elaborate and concedes that she has not applied for a
medical exemption, (id. ¶ 6). Ms. Pinto alternatively argues that she may have
“natural immunity” to COVID-19. (Id. ¶ 3.) No laboratory test currently exists,
however, that would satisfy NJDOH requirements for submission of evidence of
immunity in lieu of vaccination.
State law does contemplate that, in some instances, students may submit
evidence of immunity in lieu of vaccination, but only in accordance with NJDOH
regulations. See N.J.S.A. § 18A:61D-1. Those regulations specify “laboratory
evidence of immunity,” N.J.A.C. § 8:57-6.16, and “[t]he tests used to document
immunity must be approved by the [FDA] for this purpose,” NJDOH, Questions
and Answers on Immunization Regulations Pertaining to Children Attending
School/Higher Education: Frequently Asked Questions 34 (Aug. 2020 Update),
available at https://nj.gov/health/cd/documents/imm_requirements/vaccine_qa.pdf.
The FDA has issued EUA approval for a COVID-19 serology test. See FDA,
Coronavirus (COVID-19) Update: FDA Authorizes First Point-of-Care Antibody
Test for COVID-19 (Sept. 23, 2020), available at https://www.fda.gov/news-
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events/press-announcements/coronavirus-covid-19-update-fda-authorizes-first-
point-care-antibody-test-covid-19. The FDA has made clear, however, that although
this test can play a role “in identifying individuals who may have been exposed” to
COVID-19, these “antibody tests should not be used at this time to determine
immunity or protection against COVID-19.” FDA, FDA in Brief: FDA Advises
Against Use of SARS-CoV-2 Antibody Test Results to Evaluate Immunity or
Protection from COVID-19, Including After Vaccination (May 19, 2021), available
at
https://www.fda.gov/news-events/press-announcements/fda-brief-fda-advises-
against-use-sars-cov-2-antibody-test-results-evaluate-immunity-or-protection. That
means there currently is no FDA-approved serology test authorized to determine
immunity to COVID-19. As a result, there is no laboratory test authorized by
NJDOH for that purpose and thus no means to establish immunity from COVID-19
as an alternative to providing proof of vaccination.
Ms. Pinto argues, in the alternative, that because she selected a class that is
meeting remotely, and self-attested that she will not avail herself of the privileges of
campus facilities, the Court should compel Rutgers to grant her an exception from
the vaccination requirement. (See Pl.’s Br. at 8.) Rutgers did exempt students who
are enrolled in fully-online degree granting programs who do not receive student
identification, are not expected to come to the Rutgers campus, and could not enter
restricted areas of the campus if they chose to come. (See Roshto Decl. Ex. A.) Ms.
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Pinto, however, is not enrolled in such a program, and Rutgers does not offer a fully
online undergraduate program in Psychology. (See Lawrence Decl. ¶ 10.)
Ms. Pinto’s motion effectively asks the Court to require Rutgers to create,
oversee, and manage a new class of students: those who are fully matriculated and
have all the privileges of Rutgers in-person students, but who have selected classes
that currently are meeting remotely and who have self-attested that they will not visit
the campus. Even if Rutgers had a means to police those promises, which it does
not, those students’ educational needs may require them to visit the campus. Their
professors may return to classroom learning or require students to perform work that
can only be done on campus or in concert with fellow students. Just as likely, those
students will need to consult other faculty members or administrators. These are
only a few of the reasons why a student in Rutgers’ in-person division, who has
chosen a remote class, should not be able to avoid the vaccine mandate through a
self-attestation and election of (currently) remote classes.
II.
Ms. Pinto Cannot Establish That She Will Suffer Irreparable Harm.
The Court’s analysis of Ms. Pinto’s motion should end with a conclusion that
she has no likelihood of success on the merits, but if the Court moves on to consider
whether Ms. Pinto has established she will suffer irreparable harm absent an
injunction, the Court should find that Ms. Pinto has not satisfied this factor, either.
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See Oburn v. Shapp, 521 F.2d 142, 150 (3d Cir. 1975) (“A party moving for
preliminary injunctive relief must carry the burden of showing irreparable injury.”).
A.
Plaintiff Sat on Her Hands.
Ms. Pinto knew on March 25 that she could not take classes in Fall 2021
without complying with vaccination requirements. See Our Path Forward –
COVID-19 Vaccination and the Fall Term, Office of the President (Mar. 25, 2021),
available at https://www.rutgers.edu/president/our-path-forward. Even if, at some
point, she could have hypothesized an ability to evade the mandate by selecting a
class with initially remote instruction, she knew no later than July 23 (the date of her
lawyer’s letter) that the mandate had no such exception. (See Roshto Decl. Ex. B.)
Ms. Pinto’s counsel let sit for a month Rutgers’ offer to discuss Ms. Pinto’s situation,
(Roshto Decl. Ex. C), and Ms. Pinto waited until August 30, two days before classes
began, to seek injunctive relief. Ms. Pinto then elected to prioritize her unsuccessful
judicial recusal motion over having her request for injunctive relief considered.
The law is clear that if “a Plaintiff delays in seeking preliminary injunctive
relief, such delay is evidence that speedy relief is not needed.” EMSL Analytical,
Inc. v. Testamerica Analytical Testing Corp., No. Civ. 05-5259, 2006 WL 892718,
at *12 (D.N.J. Apr. 4, 2006); see also Lanin v. Borough of Tenafly, No. 12-3399,
2013 WL 936363, at *3 (3d Cir. Mar. 12, 2013) (“Preliminary injunctions are
generally granted under the theory that there is an urgent need for speedy action to
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protect the plaintiffs’ rights. . . . Delay in seeking enforcement of those rights
. . . tends to indicate at least a reduced need for such drastic, speedy action.”)
(internal citations omitted). A plaintiff’s undue delay in seeking injunctive relief
suffices on its own to defeat a claim of irreparable injury. See EMSL, 2006 WL
892718, at *13; see also Warner Lambert Co. v. McCrory’s Corp., 718 F. Supp. 389,
393-95 (D.N.J. 1989). Here, not only did Ms. Pinto wait five months after Rutgers
announced the mandate to sue—during which time she could have completed the
class she wishes to take without new vaccination requirements (see Lawrence Decl.
¶ 6)—but she waited weeks after suing to file a motion for injunctive relief. See
Levine v. BlockFi Inc., No. 21-11934, 2021 WL 3508831, at *2 (D.N.J. Aug. 9,
2021) (denying injunctive relief in part because plaintiff delayed seeking injunction
after filing lawsuit); Doris Behr 2012 Irrevocable Tr. v. Johnson & Johnson, No.
19-8828, 2019 WL 1519026, at *4 (D.N.J. Apr. 8, 2019) (same). The Court should
not credit a claim of emergency when it is Ms. Pinto who created that self-
proclaimed “emergency.” See Chaves v. Int’l Boxing Fed’n, No. 16-1374, 2016 WL
1118246, at *2 (D.N.J. Mar. 22, 2016) (“Based purely on a cursory review of the
documents presently before the Court, the nature and extent of irreparable harm is
not clear, given that Plaintiffs waited until the last minute to file this application.”).
Nor can Ms. Pinto claim that an injunction would allow her to complete her
graduation requirements this semester. Even if Ms. Pinto could make up the time
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she already has missed and successfully complete the single Quantitative Methods
in Psychology class for which she registered this semester, she cannot graduate with
a major in Psychology unless she also completes at least a three-credit Psychology
class at the 400 level. (Lawrence Decl. ¶¶ 4, 8.) The add/drop period for Fall 2021
classes has expired, so it is too late now for Ms. Pinto to add such a class. (See id.
¶ 9.) Because Ms. Pinto must return to Rutgers in a future semester to complete her
degree requirements in any event, this too undermines her assertion of “emergency.”
III.
The Balance of Harms and the Public Interest Favor Vaccinating as
Many People as Possible to Work Towards Eradicating COVID-19.
The Court also would serve the public interest by leaving the role of
policymaking to states and state institutions. The Supreme Court has “recognized
the role of the States as laboratories for devising solutions to difficult legal
problems.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S.
787, 817 (2015) (citation omitted); see also United States v. Lopez, 514 U.S. 549,
581 (1995) (Kennedy, J., concurring) (“States may perform their role as laboratories
for experimentation to devise various solutions where the best solution is far from
clear.”); New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,
dissenting) (“It is one of the happy incidents of the federal system that a single
courageous state may, if its citizens choose, serve as a laboratory; and try novel
social and economic experiments without risk to the rest of the country.”). “Enabling
. . . this state university to work through these problems reasonably fosters public
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health and safety in areas of scientific uncertainty.” Klaassen, 2021 WL 3073926,
at *43, citing Gonzales v. Carhart, 550 U.S. 124, 163 (2007); see also Gonzales, 550
U.S. at 163 (noting that the law gives “wide discretion to pass legislation in areas
where there is medical and scientific uncertainty,” citing Jacobson, 197 U.S. at 30-
31); Cassell v. Snyders, 990 F.3d 539, 549 (7th Cir. 2021) (“[S]cientific uncertainty
surrounding the pandemic further cautions against enjoining state coronavirus
responses unless absolutely necessary.”); Roman Cath. Diocese of Brooklyn, 141 S.
Ct. at 68 (“Members of this Court are not public health experts.”).
Ms. Pinto also is unable to show that an injunction is in the public interest.
The Court must consider the effects of enjoining the vaccine policy on the safety and
health of others. See, e.g., Cassell, 990 F.3d at 550 (“Where appropriate, this
balancing process should also encompass any effects that granting or denying the
preliminary injunction would have on nonparties . . . .” (citation omitted); see also
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (courts “should pay
particular regard for the public consequences in employing the extraordinary remedy
of injunction” (citation omitted). The public interest here favors protecting as many
people as possible from contracting a serious case of a potentially deadly illness. A
person refusing to be immunized is not “the only one[] harmed”; such refusal “could
‘sicken and even kill many others who did not consent to that trade-off.’” Klaassen,
2021 WL 3073926, at *43 (citation omitted) (balance of harms weighed in favor of
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denying relief because students “‘are not asking to be allowed to make a self-
contained choice to risk only their own health’ in making this decision—their
decision necessarily bears on the health of other students, faculty, and staff,” quoting
Cassell, 990 F.3d at 550).
CONCLUSION
The law on this subject is settled. New Jersey does not violate the State or
Federal Constitutions by authorizing institutions of higher education to require any
ACIP-approved vaccine as a condition of enrollment, and Rutgers did not violate
New Jersey law when it decided to require a COVID-19 vaccine as a condition of
Fall 2021 enrollment or imposed that mandate on Ms. Pinto, like all of her fellow
students. For the reasons stated above, the Court should deny Ms. Pinto’s motion
for injunctive relief.
Dated: September 14, 2021
Respectfully submitted,
/s/ Jeffrey S. Jacobson
Jeffrey S. Jacobson
Andrew B. Joseph
Kristen N. Roshto
FAEGRE DRINKER BIDDLE & REATH, LLP
600 Campus Drive
Florham Park, New Jersey 07932
(973) 549-7000
(973) 360-9831 (fax)
Jeffrey.Jacobson@faegredrinker.com
Andrew.Joseph@faegredrinker.com
Kristen.Roshto@faegredrinker.com
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