Plaintiffs' Reply Brief on TRO — Children's Health Defense v. Rutgers (D.N.J.)

Record facts

No. 3:21-cv-15333-ZNQ-TJB · Doc. 24 · 2021-09-20 · Docket on CourtListener

Full text

Julio C. Gomez, Esq. 
GOMEZ LLC ATTORNEY AT LAW 
1451 Cooper Road 
Scotch Plains, NJ 07076 
Tel 908.789.1080 
Fax 908.789.1081 
Attorney for Plaintiffs 
 
 
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, 
Case No. 3:21-cv-15333 
(ZNQ-TJB) 
 
-against- 
 
 
 
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 
 
 
 
 
REPLY MEMORANDUM OF PLAINTIFFS 
ADRIANA PINTO AND CHILDREN’S HEALTH DEFENSE 
FOR INJUNCTIVE RELIEF. 
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TABLE OF CONTENTS 
 
 
TABLE OF AUTHORITIES…..…………………………………………………..ii 
 
PRELIMINARY STATEMENT …………………………………………………..1 
 
STATEMENT OF FACTS ……………………………………..…….……………2 
 
ARGUMENT   ……………………………………………………………………..5 
 
Irreparable Harm ………………………………………………………………….5 
 
Likelihood of Success on the Merits ……………………………………………….5 
 
CONCLUSION …………………………………………………………………..15 
 
 
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TABLE OF AUTHORITIES 
 
Cases 
 
Abdullahi v. Pfizer, Inc., 
562 F.3d 163, 184 (2d Cir. 2009) …………………………………………………_ 
 
Ankele v. Hambrick, 
286 F. Supp. 2d 485, 496 (E.D. Pa. 2003), 
aff’d, 136 F. App’x 551 (3d Cir. 2005) ……………………………………………5 
 
Hollister v. U.S. Postal Serv., 
142 F. App’x 576, 577 (3d Cir. 2005) …………………………………………….5 
 
Jacobson v. Massachusetts, 
197 U.S. 11 (1905) …………………………………………………………..passim 
 
Klassen v. Trs. of Ind. Univ., 
7 F.4th 592 (7th Cir. 2021) ………………………………………………………..6 
 
Pers v. Teamsters Local Union 863, 
No. 12-2293, 2013 WL 5676802 (D.N.J. Oct. 17, 2013) ………………………….5 
 
 
Statutes 
 
21 U.S.C. § 360bbb-3 …………………………………………………………….13 
 
N.J.S.A. 26:1A-7 ………………………………………………………………….9 
 
N.J.S.A. 26:4-2 ……………………………………………………………………9 
 
N.J.S.A. 26:13-36 ………………………………………………………………….9 
 
N.J.S.A. 18A:61D-1 ……………………………………………………………….9 
 
N.J.S.A. 18A:61D-8 ……………………………………………………………...12 
 
N.J.S.A. 18A:62-15.1 ………………………………………………………….…11 
 
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Regulations 
 
N.J.A.C. 8:57-6.4(c) .....……………………………………………………passim 
 
Administrative History 
 
21 N.J.R. 3605 (1989) ……………………………………………………………10 
 
22 N.J.R. 1137-1140 (1990) ……………………………………………………...10 
 
27 N.J. Reg. 3631(a) (1995) ……………………………………………………...10 
 
27 N.J. Reg. 4701(a) (1995) ……………………………………………………...10 
 
33 N.J. Reg. 2752(a) (2001) ……………………………………………………...10 
 
34 N.J. Reg. 3023(a) (2002) ……………………………………………………...10 
 
36 N.J. Reg. 3335(a) (2004) ……………………………………………………...10 
 
37 N.J. Reg. 3037(b) (2005) ……………………………………………………...10 
 
40 N.J. Reg. 1962(a) (2008) ……………………………………………………...10 
 
41 N.J. Reg. 1419(a) (2009) ……………………………………………………...10 
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PRELIMINARY STATEMENT 
Despite 29 pages of briefing and dozens of legal authorities Rutgers’ 
opposition fails to explain how any legitimate state interest it possesses is 
rationally related to mandate a COVID-19 vaccine upon a student who is taking 
only a remote class and will have no physical presence on campus.1  Assuming 
arguendo that Rutgers’ conduct is subject to rational basis review – which 
Plaintiffs do not concede – Rutgers’ decision to mandate COVID-19 vaccination 
upon Ms. Pinto, a remote student, bears no rational relationship to preventing 
infection and transmission of SARS-CoV-2, and it is arbitrary and capricious 
because it contradicts the express terms of its own Policy. 
If the legitimate state interests that Rutgers intends to achieve are health and 
safety generally, and specifically, limiting the number of infections and 
transmission of COVID-19, then Rutgers cannot possibly further those interests by 
targeting a student who will not be on campus.  Under Jacobson v. Massachusetts, 
such a mandate “has no real or substantial relation to those objects,” 197 U.S. 11, 
31 (1905), because Ms. Pinto cannot infect or transmit the virus remotely.  
 
1 Ms. Pinto filed a second declaration that she will have no physical presence on 
campus (Dkt. 15).  She now submits a third declaration explaining that she cannot 
surrender her Rutgers ID because it is routinely used for identification during 
remote class examinations.  Third Declaration of Adriana Pinto, ¶ 11. She also 
explains why she erroneously believed that she only needed one class to graduate, 
when in fact she needs two.  Id. ¶¶ 3-9 and Ex. A. She plans to take the second 
course remotely in the Spring 2022 semester and apologizes to the Court for her 
mistaken belief.  Id. at ¶¶ 10-11. 
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Unvaccinated students (with medical and religious exemptions) are on-campus 
attending classes indoors with unvaccinated professors, among unvaccinated 
employees, and Rutgers does not require the public to be vaccinated to gain entry 
into its buildings (e.g. athletic events).2  Therefore, a mandate directed at Ms. Pinto 
is “beyond all question, a plain, and palpable invasion of her rights” and it is this 
Court’s duty “to so adjudge and give effect to the Constitution.”  Id. 
Notably, Rutgers’ opposition presented no sworn declaration, no policy, no 
directive, nothing to support the speculation on page 24 of its brief that Ms. Pinto 
may need to appear on campus or that professors may suddenly stop teaching 
remotely.3  On the other hand, Ms. Pinto declared under penalty of perjury that she 
will not set foot on campus.  All she wants is to finish her degree. 
STATEMENT OF FACTS 
In January 2021, Rutgers told the public and the student body that the 
COVID-19 vaccine “is not mandatory” for the Rutgers community.4  Two months 
 
2 
See 
https://scarletknights.com/sports/2021/8/30/rutgers-athletics-covid-19-in-
venue-protocols.aspx . 
3 It is also irrational for Rutgers to mandate vaccines that are not been proven to 
prevent infection or transmission: according to FDA’s briefing documents for all 
EUA authorized vaccines there is limited data to assess the effect of the vaccines in 
preventing asymptomatic infection or to assess the effect of the vaccines against 
transmission of SARS-CoV-2 from individuals who are infected despite 
vaccination.  See Verified Complaint, p. 1 (citing FDA Briefing documents for 
each vaccine). 
4 In its opposition, Rutgers submitted a link to a Rutgers produced video where Ms. 
Sherri-Ann P. Butterfield, Executive Vice Chancellor of Rutgers University 
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later Rutgers reversed.  Rutgers’ opposition offers absolutely no explanation for 
this reversal. 
It is indisputable that Rutgers’ Policy says “a student whose entire course of 
study is. . . fully remote” is exempt.5  Rutgers contends this exemption only applies 
to fully-online degree programs, see Opp. Brf. at 8, but that contention is at odds 
with the plain text of its Policy.6  Thus, Ms. Pinto is not asking Rutgers to create a 
new, extrajudicial statutory exemption for her; she is asking that Rutgers honor the 
express terms of its own Policy. 
Rutgers claims Ms. Pinto “sat” on her rights.  Opp. Brf. pp. 25-27.  She did 
not.  She relied on a reasonable interpretation of the Policy.  Rutgers argues Ms. 
Pinto was told the Policy only applied to fully on-line degree programs.  For this 
reason, undersigned counsel wrote to Rutgers to explain that the communications 
 
Newark, asks Vicente Gracias, Vice Chancellor of Rutgers Biomedical and Health 
Sciences, the following questions and he responds [at the 7:30 minute mark]: 
Q. I want to move to think about the vaccines in relation also to the 
individuals at Rutgers University and the Rutgers community.  
Will they be required to receive the vaccine?  Is it optional?  Will 
it be optional? 
A. Well, it is America and Rutgers is part of America.  So, the 
vaccine at this point is not mandatory across the United States or 
here in New Jersey and Rutgers certainly with our stance of 
human liberties and our history of protecting that, the vaccine is 
not mandatory.4 
See Opp. Brf. at 8 n.2 (claiming Dr. Gracias “speculated”). He did not. 
5 See Ex. A to Declaration of Counsel, Julio Gomez (Dkt. No. 10-3). 
6 See https://policies.rutgers.edu/. 
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of its officials were misstating the Policy.7  Rutgers claims Plaintiffs’ counsel 
ignored a request to speak in response to this letter, but he did not: the moment 
counsel discovered an email proposing a call he responded affirmatively.8 Rutgers 
conveniently omits from its exhibit the two final emails in that exchange where 
Plaintiffs’ counsel proposed a date and time for a call – Rutgers never confirmed 
the call (and never responded to the substance of the letter).9 
According to the misleading university communications that were the 
subject of counsel’s July 23, 2021 Letter, and contrary to the Policy, students were 
being required to comply by August 1, 2021, and threatened with loss of access to 
Rutgers’ login computer applications.10  But Ms. Pinto did not lose access on 
August 1, 2021, and Rutgers allowed her to register for her online course on or 
about August 3, 2021.  According to the Policy, students were supposed to submit 
evidence of vaccination “at least 2 weeks prior to coming onto campus for any 
reason” or no later than August 18 (since the fall semester started September 1).  
However, August 18 came and went and Rutgers took no action against Ms. Pinto, 
which confirmed Ms. Pinto’s reasonable belief that she was allowed to register for 
a fully remote class scheduled to begin September 1. 
 
7 See Ex. B to the Declaration of Kristen N. Roshto (“Roshto Decl.”) filed with 
Rutgers’ Opposition (Dkt. 20-1). 
8 See Ex. C to Roshto Decl. (email dated August 24, 2021) (“I am happy to 
schedule a call with you.”) (Dkt. 20-1). 
9 See Ex. A to Second Gomez Decl. and ¶ 3, filed contemporaneously herewith. 
10 See Ex. B to Roshto Decl. (enclosures to July 23, 2021 letter) (Dkt. 20-1). 
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It came as a complete surprise when Rutgers blocked Ms. Pinto from all 
access to her accounts on August 26.  She had no access to check emails, to any 
schedule of classes, to any degree or credits tracking module, nothing.  At that 
point, Ms. Pinto had standing to apply for an injunction – not before. 
REPLY ARGUMENT 
Irreparable Harm - Rutgers does not contest that Ms. Pinto’s exercise of her 
right to informed consent and to refuse unwanted medical treatment under the Due 
Process Clause is “chilled” by Rutgers’ vaccine mandate and constitutes 
irreparable harm per se.  Moving Brf. 9-10.  Any contest of that position is now 
waived.11  Therefore Ms. Pinto suffers irreparable harm.  Since Rutgers let her 
register for her on-line class without uploading vaccination documentation, took no 
action against her by the Policy’s August 18 deadline, waited until August 26 to 
block her, and she filed August 30, she did not delay in seeking injunctive relief. 
Likelihood of Success on the Merits - Ms. Pinto argued in her moving brief 
that she is likely to succeed on the merits because she possesses constitutionally 
guaranteed rights to informed consent and to refuse unwanted medical treatment 
 
11 Cf. Hollister v. U.S. Postal Serv., 142 F. App’x 576, 577 (3d Cir. 2005) (noting 
that a party’s failure to oppose an argument raised in a motion to dismiss 
constitutes waiver); Ankele v. Hambrick, 286 F. Supp. 2d 485, 496 (E.D. Pa. 2003), 
aff’d, 136 F. App’x 551 (3d Cir. 2005) (“Plaintiff makes no response to this 
argument and thus has waived his opportunity to contest it”); Pers v. Teamsters 
Local Union 863, No. 12-2293, 2013 WL 5676802, at *2 (D.N.J. Oct. 17, 2013) 
(“Failure to raise legal arguments in opposition to a motion to dismiss results in 
waiver”). 
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under the Due Process Clause and Rutgers’ mandate does not meet the 
requirements of Jacobson v. Massachusetts.  Moving Brf. at 6-8.  Rutgers argues 
that she cannot succeed on the merits because Jacobson and its progeny during the 
COVID pandemic, hold that a state can mandate vaccination against the liberty 
interest in the Due Process Clause.  However, remarkably, Rutgers ignores the 
facts and specific holdings of Jacobson in its opposition and misses the point.12 
Plaintiffs are not arguing that the right to informed consent or to refuse 
unwanted medical treatment under the Due Process Clause.  Or, that state 
legislatures cannot mandate compulsory vaccination per se.  Rather, Ms. Pinto 
contends that in this instance compulsory vaccination mandates must meet the 
specific requirements of Jacobson in order to pass constitutional muster. 
First, Jacobson does not hold that any public entity, at any time, can 
mandate any vaccine it deems appropriate as Rutgers seems to argue.  Jacobson 
upheld a Massachusetts statute delegating to local boards of health the authority to 
mandate vaccines (and the Cambridge board of health’s regulation mandating 
smallpox vaccination).  197 U.S. at 12 (concerning “reasonable regulations 
established directly by legislative enactment as will protect the public health and 
public safety”). Jacobson upheld that statute and regulation because it found them 
 
12 Rutgers focuses primarily on Klassen v. Trs. of Ind. Univ., 7 F.4th 592 (7th Cir. 
2021) which is neither binding precedent, nor persuasive, because the preliminary 
injunction under review sought to enjoin the entire COVID vaccine mandate, not 
simply a mandate on a remote only student. 
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reasonable, necessary for public health, and proportional to the need.  197 U.S. at 
27-33.  Such statutes must be read in a way that avoids harm and is fair.  Id. at 38-
39.  Rutgers’ opposition ignores these requirements, offering no explanation why 
its mandate upon a fully remote student – as opposed to all other students – is 
reasonable or necessary (since Ms. Pinto is not on campus and cannot transmit the 
virus), or proportional (since unvaccinated professors and students are permitted 
teach and attend classes indoors every day).  See id. at 27 (“no rule prescribed by a 
State, nor any regulation adopted by a local government agency acting under the 
sanction of state legislation, shall contravene the Constitution of the United States 
or infringe any right granted or secured by that instrument.”).  None of the cases 
cited by Rutgers uphold a vaccine mandate upon a person who is distanced from 
everyone else the mandate is supposed to protect.  None of the plaintiffs in Klassen 
were in Ms. Pinto’s particular situation.  Rutgers cites several cases, recently 
decided, for the proposition that Jacobson commands denial of this preliminary 
injunction but none concern a mandate on a remote student.  Opp. Brf. 12-15 
(citing Zucht v. King, 260 U.S. 174 (1922); Sadlock v. Board of Educ., 137 N.J.L. 
85 (1948); Ill. Republican Party v. Pritzker, 973 F.3d 760 (7th Cir. 2020), cert. 
denied, 141 S. Ct. 1754 (2021); Calvary Chapel Dayton Valley v. Sisolak, 140 S. 
Ct. 2603 (2020); South Bay United Pentecostal Church v.  Newsom, 140 S. Ct. 
1613 (2020); Norris v. Stanley, 21-cv-756, 2021 WL 3891615 (W.D. Mich. Aug. 
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31, 2021); W.D. v. Rockland County, 19 Civ. 2066, 2021 WL 7070065 (S.D.N.Y. 
Feb 22, 2021); Doe v. Zucker, 20-cv-840, 2021 WL 619465 (N.D.N.Y. Feb 17, 
2021); see also Harris v. Univ. of Mass., 21-cv-11244, 2021 WL 3848012 at *4 
(D. Mass. Aug. 27, 2021) (inapplicable because the UMass COVID mandate 
applied to students physically present and permitted students to switch to online 
courses). 
Indeed, Jacobson commands that a vaccination regulation must have a “real 
and substantial relation.”  Since a person sitting at home on a computer, miles 
away from campus, is not a threat to other students, it is extreme to keep Ms. Pinto 
from completing her course work at Rutgers based upon the implausible threat of 
infecting other students.  Keeping her from completing her degree requirements 
and ultimately graduating for this reason is unreasonable.  Rutgers’ policy 
unreasonably harms Ms. Pinto and could easily be avoided by allowing her to 
complete her degree from home.  Rutgers’ policy is discriminatory since 
unvaccinated professors, staff, students and members of the public are permitted on 
campus routinely.   Rutgers does not address any of these factors in its opposition. 
 
Additionally, Jacobson stands for the proposition that a state legislature 
makes the determination that vaccination is necessary and can delegate that 
authority to a board of health.  197 U.S. at 27 (“appropriate for the legislature to 
refer that question… to a Board of Health”).  That has occurred in New Jersey, but 
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not with respect to Rutgers (or any other college or university).  And none of the 
government actors who are truly empowered to mandate compulsory vaccination 
in New Jersey have manded COVID-19 vaccines for college attendance. 
 
New Jersey’s Department of Health has the power to mandate vaccines: 
acting through New Jersey’s Public Health Council, the Department of Health can 
mandate vaccines but only if it publishes the proposed regulation, holds a public 
hearing and gives the public the opportunity to comment.  See N.J.S.A. 26:1A-7 
(power to establish State Sanitary Code, including immunization against disease); 
see also N.J.S.A. 26:4-2 (general powers). The Commissioner of Health can 
mandate vaccines unilaterally, but only during a public health emergency.  See 
N.J.S.A. 26:13-14.  Most recently, the Governor can mandate vaccines unilaterally 
as a result of recent powers temporarily vested in him by the state legislature, but 
again, in this instance, but only until January 11, 2022.  See N.J.S.A. 26:13-36 
Relying on N.J.S.A. 18A:61D-1 and N.J.A.C. 8:57-6.4(c), Rutgers claims it 
can mandate any vaccine, at any time (public emergency or not), without 
publication, without a public hearing or public comment, if it deems it appropriate 
and if the ACIP recommends it.  According to Rutgers this statute and this 
regulation is the legal authority to mandate vaccines on the student body.  Plaintiffs 
did not cite these provisions in their moving brief or their complaint because they 
do not give Rutgers any such authority and this Court should not be so persuaded 
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that a cryptic 30+ year old regulation gave Rutgers and every college in the State, 
the broad and express authority to mandate whatever vaccines they see fit. 
First, N.J.S.A. 18A:61D-1 has no language authorizing Rutgers to mandate 
any vaccines.  Second, N.J.A.C. 8:57-6.4(c) (formerly N.J.A.C. 8:57-6.2(c), and 
before 1995, N.J.A.C. 9:2-14.2(b)) only permits colleges and universities to 
establish “additional requirements for student immunizations and documentation” 
not additional immunizations for students.  This regulation appears to have been 
proposed for the first time in 1989; yet the administrative history of this regulation 
does not support Rutgers’ interpretation that more than 30 years ago the state of 
New Jersey gave Rutgers carte blanche authority to unilaterally impose any new 
vaccine on its student body it deemed appropriate.13  See 21 N.J. Reg. 3605-3607 
(1989) (original version of rule proposed for N.J.A.C. 9:2-14.2(c)); 22 N.J. Reg. 
1137-1140 (1990) (original version of rule adopted and codified at N.J.A.C. 9:2-
14.1(b))14. Plaintiffs have not found anywhere in the administrative history of this 
regulation going back to 1989 any discussion or suggestion that Rutgers (and every 
college and university) has discretion to unilaterally increase the types of vaccines 
 
13 See 21 N.J. Reg. 3605 (1989) (original rule proposal for N.J.A.C. 9:2-14(c)); 22 
N.J. Reg. 1137-1140 (original rule codified at N.J.A.C. 9:2-14.1(b)); 27 N.J. Reg. 
3631(a) (1995) (recodified at N.J.S.A. 8:57-6.2(c)); 27 N.J. Reg. 4701(a) (1995); 
33 N.J. Reg. 2752(a) (2001); 34 N.J. Reg. 3023(a) (2002); 36 N.J. Reg. 3335(a) 
(2004); 37 N.J. Reg. 3037(b) (2005); 40 N.J. Reg. 1962(a) (2008) (proposal to 
recodify at N.J.S.A. 8:57-6.4(c)); 41 N.J. Reg. 1419(a) (2009) (recodified at 
N.J.A.C. 8:57-6.4(c)). 
14 See Ex. B and C to Second Gomez Decl., filed herewith. 
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that students must take to attend.  Absent such an express delegation of police 
power, like in Jacobson, Rutgers’ reliance on this regulation should not be used to 
condone chilling the free exercise of the Due Process rights of Ms. Pinto or the 
70,000 students at Rutgers. 
Moreover, when this regulation was originally proposed Rutgers commented 
that “standards within the rules and the underlying legislation are inadequate as 
approximately 10% of those individuals vaccinated prior to 1980 are not 
adequately protected due to vaccine failure.”  22 N.J. Reg. 1138 (1990) (Second 
Gomez Decl, Ex. C).  More recently, on March 7, 2019, Rutgers’ representative 
appeared before the Senate Higher Education Committee testifying in favor of a 
statutory amendment that would permit colleges and universities to require 
meningococcal vaccines as recommended they become recommended by the 
ACIP.  See Recording of Senate Higher Education Committee Hearing, March 7, 
2019 on bills to amend meningococcal statute, N.J.S.A. 18A:62-15.1.15 
Rutgers’ comment to the 1989 rule proposal and its recent testimony in 2019 
would be completely unnecessary if the regulation it relies upon, N.J.A.C. 8:57-
6.4(c), has always meant that a university had the authority to require more 
vaccinations unilaterally on its student body.  Despite the administrative history of 
 
15 Available at https://www.njleg.state.nj.us/media/mp.asp?M=A/2019/SHI/0307-
1000AM-M0-1.m4a&S=2018. (testimony of Melodee Laskey, MD, Assistant Vice 
Chancellor, Department of Health and Wellness, Rutgers New Brunswick at 
approx. 40 minute mark). 
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this regulation belying that interpretation, that is exactly what Rutgers claims this 
regulation means today: that it is a unilateral authority to impose whatever new 
vaccine Rutgers deems appropriate upon the student body with no restrictions 
(except in the current version of the rule, if recommended by the Advisory 
Committee on Immunization Practices (“ACIP”) of the Centers for Disease 
Control and Prevention). 
This regulation clearly is not a delegation of police power to mandate 
vaccines, and Rutgers’ reliance on this rule is mere sophistry.  Moreover, this 
regulation is certainly not an authorization to mandate vaccines that are not 
licensed and fully approved by the FDA.  Additionally, if colleges and universities 
could simply add new vaccines to those required by the state Department of Health 
to attend college, then there would be no need for the State Legislature to devote 
considerable time and resources to passing statutes requiring additional vaccines 
for college attendance since the adoption of this regulation in 1990.  See e.g. 
N.J.S.A. 18A:61D-8 (hepatitis B vaccine); N.J.S.A. 18A:62-15.1 (meningococcal 
vaccine).16 
 
Even assuming that N.J.A.C. 8:57-6.4(c), authorizes Rutgers to mandate 
vaccines, Rutgers’ mandate as it pertains to Ms. Pinto is not supported by any 
specific ACIP recommendation, as the rule requires.  ACIP has not issued any 
 
16 Plaintiffs are not aware of any instance since 1989 where colleges and 
universities in New Jersey unilaterally mandated vaccines on the student body. 
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recommendations for vaccinating students engaged in remote learning activities.  
ACIP has recommended COVID-19 vaccines generally, but with respect to all 
three vaccines, ACIP has issued “interim recommendations” which are based on 
the use of these vaccines “under an EUA.”17   
The EUAs were issued pursuant to 21 U.S.C. § 360bbb-3, which, as a 
condition of emergency use authorization, the Secretary is required to establish 
“appropriate conditions designed to ensure that individuals to whom the product is 
administered are informed” of, inter alia, “the option to accept or refuse 
administration of the product, of the consequences, if any, of refusing 
administration of the product, and of the alternatives to the product that are 
available and of their benefits and risks.” 21 U.S.C. § 360bbb-3(e)(1)(A).  
Therefore, the ACIP recommendation (upon which Rutgers relies) is tethered to 
compliance with 21 U.S.C. § 360bbb-3’s requirement that recipients of these 
vaccines have a right to accept or refuse administration.  Rutgers’ mandate – 
 
17 See Second Gomez Decl. Ex. D, E, F (Morbidity and Mortality Weekly Reports 
for Pfizer, Moderna and Janssen EUA COVID-19 vaccines), filed herewith.  “The 
interim recommendation and clinical considerations are based on use of the Pfizer-
BioNTech COVID-19 vaccine under and EUA and might change as more 
evidence becomes available.”  Second Gomez Decl., Ex. D p. 1923.  “The interim 
recommendation and clinical considerations are based on use of the Moderna 
COVID-19 vaccine under and EUA and might change as more evidence becomes 
available.”  Second Gomez Decl., Ex. E p. 1654.  ““The interim recommendation 
and clinical considerations are based on use of the Janssen COVID-19 vaccine 
under and EUA and might change as more evidence becomes available.” Second 
Gomez Decl., Ex. F p. 331 (emphasis added to all). 
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presumably adopted in conjunction with ACIP’s recommendation – flies in the 
face of that right since the mandate chills the free exercise of that option under 
federal law and rights under the Due Process Clause by depriving students from 
continuing their academic studies at Rutgers if they refuse administration of an 
EAU COVID-19 vaccine. 
Rutgers cannot claim it has authority to issue vaccines per ACIP 
recommendations and then ignore that ACIP’s recommendations require a 
recipient to receive Fact Sheets stating they are free to receive these vaccines 
voluntarily.  See Second Gomez Decl., Ex. G at 1 (“It is your choice to receive the 
Pfizer-BioNTech COVID 19 Vaccine”), Ex. H at 1 (“It is your choice to receive 
the Moderna BioNTech COVID 19 Vaccine”), Ex. I at 1(“It is your choice to 
receive the Janssen COVID 19 Vaccine”)).   
Rutgers makes a passing reference to the DOJ’s recent opinion on this 
matter for the proposition that 21 U.S.C. § 360bbb-3  does not include mandates; 
that DOJ opinion is not binding on this Court, but which more importantly, it 
completely ignores the principle that “in America” government cannot coerce 
acceptance of an unlicensed medical product.18  See e.g., Abdullahi v. Pfizer, Inc., 
562 F.3d 163, 184 (2d Cir. 2009) (recognizing that “the domestic laws of at least 
 
18 Since the filing of Plaintiffs’ Complaint, FDA has purported to license the Pfizer 
vaccine; however, the purported licensure of Pfizer’s vaccine is of no moment 
since Rutgers is not authorized to unilaterally mandate any vaccine, licensed or 
unlicensed, upon the student body. 
Case 3:21-cv-15333-ZNQ-TJB   Document 24   Filed 09/20/21   Page 18 of 20 PageID: 297

 
15 
eighty-four States all uniformly and unmistakably prohibit medical experiments on 
human beings without their consent, thereby providing concrete content for the 
norm.”), but see Norris v. Stanley, 2021 WL 3891615 (W.D. Mich 2021) 
(questioning this position in view of Pfizer vaccine approval).  Expulsion from 
school, a job, and civil society are not mere consequences but coercion specifically 
intended to force a person to reverse a voluntary decision to exercise informed 
consent and refuse unwanted medical treatment.  Jacobson weighed the imposition 
of a $5 fine, not expulsion from school, a job or civil society. 
Assuming this Court accepts Rutgers argument that N.J.A.C. 8:57-6.4(c), 
authorizes Rutgers to mandate vaccines, and that its mandate is consistent with 
ACIP recommendations, then Rutgers’ mandate must still be reasonable and 
necessary for public health to pass muster under Jacobson, 197 U.S. at 27-33.  As 
explained at length above, in this case, it does not. 
CONCLUSION 
 
For all these reasons, this Court should issue a temporary restraining order 
and/or preliminary injunction maintaining the status quo; requiring Defendants to 
follow Rutgers University Policy Section 10.3.14 which exempts students enrolled 
in fully-remote classes from COVID-19 vaccination; ordering Rutgers to lift the 
block on Ms. Pinto’s account; and allowing her to attend her class remotely 
without COVID-19 vaccination for the Fall 2021 and Spring 2022 semesters. 
Case 3:21-cv-15333-ZNQ-TJB   Document 24   Filed 09/20/21   Page 19 of 20 PageID: 298

 
16 
Respectfully submitted, 
September 20, 2021  
 
 
 
GOMEZ LLC 
 
 
 
 
 
 
 
ATTORNEY AT LAW 
 
 
 
 
 
 
 
By:  s/ Julio C. Gomez  
 
 
 
 
 
 
 
 
 
   Julio C. Gomez, Esq. 
1451 Cooper Road 
Scotch Plains, NJ 07076 
Tel 908.789.1080 
Fax 908.789.1081 
jgomez@gomezllc.com 
Attorney for Plaintiffs 
Case 3:21-cv-15333-ZNQ-TJB   Document 24   Filed 09/20/21   Page 20 of 20 PageID: 299

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