Rutgers Memorandum in Support of Motion to Dismiss — Children's Health Defense v. Rutgers (D.N.J.)

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No. 3:21-cv-15333-ZNQ-TJB · Doc. 39-1 · 2021-11-19 · Docket on CourtListener

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FAEGRE DRINKER BIDDLE & REATH LLP 
Jeffrey S. Jacobson  
Andrew B. Joseph 
W. Joshua Lattimore 
Jennifer P. Montan  
600 Campus Drive 
Florham Park, New Jersey 07932 
(973) 549-7000 
(973) 360-9831 (fax) 
Jeffrey.Jacobson@faegredrinker.com 
Andrew.Joseph@faegredrinker.com 
Joshua.Lattimore@faegredrinker.com 
Jennifer.Montan@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, ANTHONY 
LAMANCUSA, JESSICA MOORE, RYAN
SANDOR, GIANNA CORALLO, AND 
RYAN FARRELL, AND DOES 2, 3, 6, 7, 9
AND 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) 
 
Return Date: February 7, 2022 
 
 
 
DEFENDANTS’ 
MEMORANDUM OF LAW 
IN SUPPORT OF THEIR 
MOTION TO DISMISS 
PLAINTIFFS’ FIRST 
AMENDED COMPLAINT 
PURSUANT TO FED. R. CIV. 
P. 12(B)(1) AND  
FED. R. CIV. P. 12(B)(6) 
 
 
 
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TABLE OF CONTENTS 
 
Page 
 
 
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INTRODUCTION............................................................................................................... 1 
FACTUAL AND LEGAL BACKGROUND .................................................................. 3 
LEGAL STANDARD .......................................................................................................... 5 
ARGUMENT ........................................................................................................................ 7 
I. 
Virtually All of Plaintiffs’ Claims Fail For Lack of Standing or 
Mootness. ........................................................................................................ 7 
A. 
The student Plaintiffs who are exempt from the mandate 
lack standing to challenge the mandate. ........................................... 7 
B. 
Because Rutgers’ vaccination and masking policies apply 
equally to all persons, vaccinated or not, the exempt 
Plaintiffs have no ripe challenge to Rutgers’ policies. .................... 8 
C. 
Plaintiff CHD lacks organizational standing to pursue 
claims not possessed by the student Plaintiffs. ............................. 10 
II. 
The Court Should Dismiss Plaintiffs’ Constitutional Claims. ................ 11 
A. 
Plaintiffs fail to allege a violation of their rights to Due 
Process................................................................................................ 11 
B. 
Plaintiffs have not alleged an Equal Protection violation. ........... 17 
C. 
The Rutgers Policy does not burden the free exercise of 
religion. ............................................................................................... 19 
D. 
The mandate does not violate the New Jersey Constitution. ...... 21 
III. 
Plaintiffs’ 42 U.S.C. § 1983 and NJCRA Claims Fail Because They 
Do Not State Any Violations of Constitutional Rights. .......................... 23 
IV. 
Rutgers’ Policies Violate No State or Federal Law. ................................. 25 
A. 
Plaintiffs fail to allege a violation of federal law. .......................... 25 
B. 
New Jersey law explicitly authorizes Rutgers’ policies. ................ 26 
V. 
Plaintiffs’ Breach of Contract Claim Fails Because They Do Not 
Allege the Existence of a Contract or How Rutgers Breached It. ......... 28 
VI. 
Plaintiffs’ Equitable Estoppel Claim Fails Because Rutgers Did 
Not Promise a Vaccine-Free Fall 2021 Academic Semester. .................. 30 
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TABLE OF CONTENTS 
(continued) 
Page 
 
 
-ii- 
 
 
VII. The Court Should Disregard Plaintiffs’ Inflammatory and 
Unsupported Claims That Rutgers Had a Financial Motive to 
Impose the Mandate. ................................................................................... 32 
CONCLUSION .................................................................................................................. 34 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
Am. Chiropractic Ass’n v. Am. Specialty Health, Inc., 
625 F. App’x 169 (3d Cir. 2015) ................................................................................... 11 
Ballentine v. United States, 
486 F.3d 806 (3d Cir. 2007) ..............................................................................................5 
Behar v. Murphy, 
No. 20-5206, 2020 WL 6375707 (D.N.J. Oct. 30, 2020) (Wolfson, J.) ................ 9, 10 
Big Tyme Invs., L.L.C. v. Edwards, 
No. 20-30526, 2021 WL 118628 (5th Cir. Jan. 13, 2021) .......................................... 15 
Board of Education of Mountain Lakes v. Maas, 
152 A.2d 394 (N.J. Super. Ct. App. Div. 1959)........................................................... 22 
Bridges v. Houston Methodist Hosp., 
No. H-21-1774, 2021 WL 2399994 (S.D. Tex. June 12, 2021) ................................. 26 
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 
508 U.S. 520 (1993) ........................................................................................................ 19 
City of Oklahoma City v. Tuttle, 
471 U.S. 808 (1985) ........................................................................................................ 24 
Clapper v. Amnesty Int’l USA, 
568 U.S. 398 (2013) ...........................................................................................................9 
Common Cause v. Pennsylvania, 
558 F.3d 249 (3d Cir. 2009) ........................................................................................... 10 
In re Conroy, 
486 A.2d 1209 (N.J. 1985) ............................................................................................. 22 
D’Agostino v. Maldonado, 
78 A.3d 527 (2013) ......................................................................................................... 30 
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Delaney v. Baker, 
511 F. Supp. 3d 55 (D. Mass. 2021) ....................................................................... 18, 21 
Dykes v. Se. Pa. Transp. Auth., 
68 F.3d 1564 (3d Cir. 1995) ........................................................................................... 24 
Faistl v. Energy Plus Holdings, LLC, 
No. 12-2879 JLL, 2012 WL 3835815 (D.N.J. Sept. 4, 2012)..................................... 30 
Foley Mach. Co. v. Amland Contractors, Inc., 
506 A.2d 1263 (N.J. Super. Ct. App. Div. 1986) ........................................................ 31 
Gould Elecs., Inc. v. United States, 
220 F.3d 169 (3d Cir. 2000) ..............................................................................................5 
Groman v. Twp. of Manalapan, 
47 F.3d 628 (3d Cir. 1995) ............................................................................................. 23 
Harris v. Univ. of Mass., Lowell, 
No. 21-CV-11244-DJC, 2021 WL 3848012 (D. Mass. Aug. 27, 2021) . 13, 15, 17, 20 
Holiday Vill. E. Home Owners Ass’n, Inc. v. QBE INS Corp., 
830 F. Supp. 2d 24 (D.N.J. 2011) ............................................................................... 4, 6 
Hottenstein v. City of Sea Isle City, 
977 F. Supp. 2d 353 (D.N.J. 2013) ............................................................................... 23 
Ill. Republican Party v. Pritzker, 
973 F.3d 760 (7th Cir. 2020), cert. denied, 141 S.Ct 1754 (2021) ................................. 15 
Jacobson v. Massachusetts, 
197 U.S. 11 (1905) .....................................................................................................passim 
Jeffrey Rapaport M.D., P.A. v. Robin S. Weingast & Assocs., Inc., 
859 F. Supp. 2d 706 (D.N.J. 2012) ........................................................................... 6, 30 
Johnson v. Brown, 
No. 3:21-CV-1494-SI, 2021 WL 4846060 (D. Or. Oct. 18, 2021) ........................... 15 
Kaul v. Christie, 
372 F. Supp. 3d 206 (D.N.J. 2019) ............................................................................... 17 
Kehr Packages, Inc. v. Fidelcor, Inc., 
926 F.2d 1406 (3d Cir. 1991) ............................................................................................5 
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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) .................... 19, 20, 25 
League of Indep. Fitness Facilities and Trainers, Inc. v. Whitmer, 
814 F. App’x 125 (6th Cir. 2020) .................................................................................. 15 
McTernan v. City of York, 
577 F.3d 521 (3d Cir. 2009) ........................................................................................... 19 
Messina v. Coll. of N.J., 
No. CV2117576ZNQDEA, 2021 WL 4786114  
(D.N.J. Oct. 14, 2021) .............................................................................................. 14, 15 
MK Strategies, LLC v. Ann Taylor Stores Corp., 
567 F. Supp. 2d 729 (D.N.J. 2008) ............................................................................... 29 
Monell v. Department of Social Services., 
436 U.S. 658 (1978) ........................................................................................................ 24 
Mortensen v. First Fed. Sav. & Loan Ass’n, 
549 F.2d 884 (3d Cir. 1977) ..............................................................................................5 
N.J. Turnpike Auth. v. Jersey Cent. Power & Light, 
772 F.2d 25 (3d Cir. 1985) ................................................................................................7 
Nat’l Ass’n of Theatre Owners v. Murphy, 
No. 3:20-CV-8289 (BRM) (TJB), 2020 WL 5627145  
(D.N.J. Aug. 18, 2020).................................................................................................... 12 
Nationwide Ins. Indep. Contractors Ass’n, Inc. v. Nationwide Mut. Ins. Co., 
No. 11-3085, 2012 WL 1524381 (E.D. Pa. May 1, 2012) .......................................... 11 
In re Newark, 
Nos. A-0146-21, A-0159-21, 2021 WL 4398457  
(N.J. Super. Ct. App. Div. Sept. 27, 2021) ................................................................... 23 
Norris v. Stanley, 
2021 WL 3891615 (W.D. Mich. Aug. 31, 2021) ............................................................8 
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Norwegian Cruise Lines Holdings, Ltd. v. Rivkees, 
No. 21-22492-CIV-WILLIAMS, 2021 WL 3471585  
(S.D. Fla. Aug. 8, 2021) ............................................................................................ 16, 18 
Pelekai v. Hawai’i, 
No. 21-CV-00343-DKW-RT, 2021 WL 4944804  
(D. Haw. Oct. 22, 2021) ....................................................................................................7 
Phillips v. City of New York, 
27 F. Supp. 3d 310 (E.D.N.Y. 2014) ...................................................................... 18, 19 
Phillips v. City of New York, 
775 F.3d 538 (2d Cir.), cert. denied 577 U.S. 822 (2015) ......................................... 14, 17 
Phillips v. County of Allegheny, 
515 F.3d 224 (3d Cir. 2008) ..............................................................................................6 
Plyler v. Doe, 
457 U.S. 202 (1982) ........................................................................................................ 17 
Polanco v. Omnicell, Inc., 
988 F. Supp. 2d 451 (D.N.J. 2013) ..................................................................................6 
Potter v. Newkirk, 
No. 17-08478, 2020 WL 6144756 (D.N.J. Oct. 20, 2020) ......................................... 29 
Reilly v. Ceridian Corp., 
664 F.3d 38 (3d Cir. 2011) ................................................................................................9 
Resurrection School v. Hertel, 
11 F.4th 437 (6th Cir. 2021), vacated, 2021 WL 5227152............................................ 20 
Roman Catholic Diocese of Brooklyn v. Cuomo, 
141 S.Ct. 63 (2020).................................................................................................... 13, 15 
Sadlock v. Carlstadt Board of Education, 
58 A.2d 218 (N.J. 1948) ..................................................................................... 21, 22, 23 
Schmidt v. Skolas, 
770 F.3d 241 (3d Cir. 2014) ..............................................................................................6 
Sharp v. Kean Univ., 
153 F. Supp. 3d 669 (D.N.J. 2015) ............................................................................... 24 
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Sourovelis v. City of Philadelphia, 
103 F. Supp. 3d 694 (E.D. Pa. 2015) .......................................................................... 5, 6 
Tandon v. Newsom, 
141 S.Ct. 1294 (2021) ..................................................................................................... 20 
Tenafly Eruv Ass’n v. Borough of Tenafly, 
309 F.3d 144 (3d Cir. 2002) ........................................................................................... 20 
Torsiello v. Strobeck, 
955 F. Supp. 2d 300 (D.N.J. 2013) ............................................................................... 29 
Valdez v. Grisham, 
No. 21-cv-783, 2021 WL 4145746 (D.N.M. Sept. 13, 2021) ..................................... 26 
Wade v. Univ. of Conn. Bd. of Trs., 
No. 3:21-CV-924 (JAM), 2021 WL 3616035  
(D. Conn. Aug. 16, 2021) ..................................................................................................7 
Washington v. Glucksberg, 
521 U.S. 702 (1997) ........................................................................................................ 12 
We the Patriots USA, Inc. v. Hochul, 
Nos. 21-2179, 21-2566, 2021 WL 5121983 (2d Cir. Nov. 4, 2021) .......................... 15 
Wise v. Inslee, 
No. 2:21-CV-0288-TOR, 2021 WL 4951571  
(E.D. Wash. Oct. 25, 2021) ........................................................................................... 24 
Statutes, Rules & Regulations 
21 U.S.C. § 360bbb-3 ........................................................................................................... 25 
21 U.S.C. § 360bbb-3(e)(1)(A)(ii) ........................................................................................ 25 
21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III) ................................................................................ 25 
42 U.S.C. § 1983 ................................................................................................................... 23 
Fed. R. Civ. P. 12(b)(1) ................................................................................................ 5, 7, 10 
Fed. R. Civ. P. 12(b)(6) ...................................................................................................... 6, 9 
N.J.A.C. § 8:57-6.4 ...................................................................................................................1 
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N.J.A.C. § 8:57-6.4(c) ..................................................................................................... 17, 26 
N.J.A.C. § 8:57-6.14(d) ..................................................................................................... 3, 27 
N.J.A.C. § 8:57-6.15.............................................................................................................. 27 
N.J.A.C. § 8:57-6.16.............................................................................................................. 27 
N.J.S.A. § 18A:61D-1 ........................................................................................... 1, 17, 26, 27 
Other Authorities 
Exec. Order No. 14042, 86 Fed. Reg. 50,985 (Sept. 14, 2021) ................................... 8, 33 
Exec. Order No. 14043, 86 Fed. Reg. 50,989 (Sept. 14, 2021) ....................................... 33 
F.D.A., Coronavirus (COVID-19) Update: FDA Authorizes First Point-of-Care 
Antibody Test for COVID-19 (Sept. 23, 2020), 
https://www.fda.gov/news-events/press-announcements/
coronavirus-covid-19-update-fda-authorizes-first-point-care-
antibody-test-covid-19 ................................................................................................... 28 
F.D.A., 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), https://www.fda.gov/news-
events/press-announcements/fda-brief-fda-advises-against-use-sars-
cov-2-antibody-test-results-evaluate-immunity-or-protection .................................. 28 
F.D.A., Q&A for Comirnaty (COVID-19 Vaccine mRNA) (Oct. 20, 2021), 
https://www.fda.gov/vaccines-blood-biologics/qa-comirnaty-covid-
19-vaccine-mrna .................................................................................................................8 
From McDonald’s to Goldman Sachs, here are the companies mandating vaccines for 
all or some employees, NBC News, 
https://www.nbcnews.com/business/business-news/here-are-
companies-mandating-vaccines-all-or-some-employees-n1275808 
(last updated Nov. 16, 2021) ......................................................................................... 33 
Guide to Returning to Rutgers, Rutgers Institutional Planning and 
Operations, at 9 (Oct. 25, 2021), 
https://ipo.rutgers.edu/sites/default/files/
Guide%20To%20Returning%20To%20Rutgers.pdf ....................................................9 
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Here’s a List of Colleges That Require Students or Employees to Be Vaccinated 
Against Covid-19, The Chronicle of Higher Education, 
https://www.chronicle.com/blogs/live-coronavirus-updates/heres-
a-list-of-colleges-that-will-require-students-to-be-vaccinated-against-
covid-19 (last updated Nov. 16, 2021) ......................................................................... 33 
N.J. Dep’t of Health, Questions and Answers on Immunization Regulations 
Pertaining to Children Attending School/Higher Education: Frequently Asked 
Questions 34 (2021), https://nj.gov/health/cd/
documents/imm_requirements/vaccine_qa.pdf (last visited Nov. 18, 
2021) ................................................................................................................................. 28 
Our Path Forward: COVID-19 Vaccination and the Fall Term, Office of the 
Rutgers President (Mar. 25, 2021), 
https://www.rutgers.edu/president/our-path-forward ...............................................4 
The Trump Administration's 'Operation Warp Speed' Has Spent $12.4 Billion on 
Vaccines. How Much Is That, Really?, Time (Dec. 14, 2020), 
https://time.com/5921360/operation-warp-speed-vaccine-
spending/ ......................................................................................................................... 33 
Universitywide COVID-19 Information, Rutgers Univ., 
https://coronavirus.rutgers.edu/covid-19-vaccine/#:~:text=
Therefore%2C%20to%20ensure%20compliance%20with,are%20the
%20only%20permissible%20exceptions (last visited Nov. 19, 2021) .........................9 
What Colleges Require the COVID-19 Vaccine?, Best Colleges, 
https://www.bestcolleges.com/blog/list-of-colleges-that-require-
covid-19-vaccine/ (last updated Nov. 15, 2021) ......................................................... 33 
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. __ (slip op.) (2021) ......................................................................... 25, 26 
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INTRODUCTION 
A New Jersey law, N.J.S.A. § 18A:61D-1, has long obligated Rutgers, the State 
University of New Jersey (“Rutgers”), to require every Rutgers student to (1) be 
vaccinated against certain diseases and (2) provide proof of vaccination as a condition 
of matriculating and remaining enrolled.  Regulations specify certain vaccinations that 
Rutgers must require all students to take, and N.J.A.C. § 8:57-6.4 allows Rutgers “to 
establish additional requirements for student immunizations and documentation that 
such institution shall determine appropriate and which is recommended by” the federal 
Advisory Committee on Immunization Practices (“ACIP”).  In March 2021, while 
Rutgers was in the midst of its third semester conducted remotely because of the 
COVID-19 pandemic, Rutgers announced plans to return to in-person learning for the 
Fall 2021 semester.  A linchpin of that plan was Rutgers exercising of its authority to 
require students to take one of the ACIP-recommended COVID-19 vaccines unless 
they qualified for a medical or religious exemption from the mandate. 
Vaccination requirements have been a decades-long staple of primary, secondary, 
and higher education in New Jersey and around the country, and the United States 
Supreme Court and New Jersey Supreme Court repeatedly have upheld vaccination 
requirements against constitutional challenges.  Unfortunately, however, COVID-19 
vaccine mandates have become political.  Children’s Health Defense, Inc. (“CHD”), a 
well-funded anti-vaccination group, and several Rutgers students who paid ten dollars 
each to become “lifetime members” of CHD, filed a 118-page First Amended 
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Complaint (“FAC”) challenging Rutgers’ COVID-19-related vaccination, masking, and 
testing policies.  The FAC is legally baseless.  The Court should dismiss it for lack of 
standing and for failure to state a claim upon which relief can be granted. 
For most of Plaintiffs’ claims, the Court need not even reach the merits.  All but 
one of the student Plaintiffs have received religious exemptions and therefore do not 
need to take the vaccine.  Those students’ challenge to the mandate is moot.  Their 
separate claims that Rutgers someday may impose different masking requirements on 
unvaccinated students are not ripe because Rutgers has no such differential policy.  
Rutgers requires all persons to wear masks indoors, regardless of vaccination status, and 
does not require anyone (vaccinated or not) to wear masks outdoors. 
That leaves just one of the Plaintiffs, Adriana Pinto, who remains unvaccinated 
and non-exempt, and who therefore has standing to challenge the vaccine mandate.  
When Ms. Pinto sought an injunction to halt the mandate, however, this Court held she 
is unlikely to succeed on the merits of her claim.  See ECF No. 27 at 9.  The Court based 
its decision on clear precedents, including Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905), 
in which the Supreme Court applied a deferential standard of review to public health 
measures and held that the Constitution does not preclude state vaccination mandates 
that bear a “real or substantial relation” to protecting public health and safety.  During 
the COVID-19 pandemic, the Supreme Court has refused multiple opportunities to 
revisit or disturb the core holding of Jacobson, and numerous federal courts of appeals 
have applied that precedent to uphold COVID-19 vaccination mandates.  Jacobson 
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forecloses any federal constitutional challenge to Rutgers’ vaccine mandate, and 
Plaintiffs’ other challenges to the mandate based on the New Jersey Constitution and 
federal and state laws facially lack merit. 
Separate from Plaintiffs’ attack on the vaccine mandate, the FAC complains that 
Rutgers excludes unvaccinated students from student housing.  But that policy also is 
subject to rational basis review, and the logic of excluding unvaccinated persons from 
communal living situations during a pandemic, because alternatives like masking are not 
feasible in dormitory life, is obvious.  Rutgers, moreover, has regulatory authority to 
exclude unvaccinated students from campus entirely during a disease outbreak.  See 
N.J.A.C. § 8:57-6.14(d).  It stands to reason that Rutgers has a rational basis to take the 
much less restrictive, and common-sense, step of excluding unvaccinated students only 
from dormitory living, not the whole campus. 
Plaintiffs’ FAC is their second attempt to plead claims.  As noted, the Court 
already heard and denied Ms. Pinto’s request for injunctive relief because her claims 
lack merit, and Ms. Pinto elected not to appeal from that ruling.  Nothing would be 
gained, and public resources would be needlessly taxed, by allowing Plaintiffs further 
leave to amend their FAC.  The Court should dismiss the FAC with prejudice. 
FACTUAL AND LEGAL BACKGROUND 
Rutgers assumes general and judicially noticeable familiarity with the COVID-19 
pandemic, the loss of life it has caused, and its disruptions to nearly every aspect of daily 
life in New Jersey, including the operations of this Court.  On March 21, 2020, 
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Governor Phil Murphy issued Executive Order No. 107, an unprecedented directive 
for “[a]ll New Jersey residents [to] remain at home or at their place of residence” except 
for certain specified exigencies.  EO 107 directed the closure of all non-“essential” retail 
businesses and the cancellation of all “[g]atherings of individuals, such as parties, 
celebrations, or other social events.”  The Governor closed “[a]ll public, private, and 
parochial” schools and directed “[a]ll institutions of higher education” to “cease in-
person instruction.”  Rutgers conducted the second half of its Spring 2020 semester 
remotely and continued remote learning during the entire 2020-2021 academic year. 
On March 25, 2021, with the expectation that ACIP-recommended COVID-19 
immunizations would shortly become available to all adults in the United States, Rutgers 
announced that its students would have to provide proof of COVID-19 vaccination in 
order to matriculate for the Fall 2021 semester.  See Our Path Forward: COVID-19 
Vaccination and the Fall Term, Office of the Rutgers President (Mar. 25, 2021), 
https://www.rutgers.edu/president/our-path-forward.1 
                                               
1  The FAC alleges that in January 2021, Rutgers told students that vaccination was not 
mandatory for students to return to campus for in-person instruction.”  FAC ¶ 191.  It 
is not true, however, that Vicente Gracias, a Rutgers Biomedical and Health Sciences 
official, “assured viewers [in a video] that Rutgers was not mandating COVID-19 
vaccines based upon a history and tradition at the University of promoting human 
liberty.” 
 
Id. 
The 
video 
is 
available 
at 
https://vimeo.com/502384549/ 
10286f6cb1?utm_campaign=5370367&utm_source=affiliate&utm_channel=affiliate
&cjevent=ea9051b9045311ec80c547850a82b838&clickid=ea9051b9045311ec80c5478
50a82b838.  At the 7:30 mark, Dr. Gracias speculated that Rutgers might not mandate 
the vaccine. He made no promise that Rutgers could not or would not do so.  The 
Court may consider the video because Plaintiffs explicitly relied on it.  See Holiday Vill. 
E. Home Owners Ass’n, Inc. v. QBE INS Corp., 830 F. Supp. 2d 24, 26 (D.N.J. 2011). 
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By announcing the vaccination mandate more than five months ahead of the Fall 
2021 semester, before any student had paid for Fall 2021 classes, Rutgers gave students 
ample time to prepare or consider whether any opposition to COVID-19 vaccination 
warranted a decision to suspend their education or pursue it at another institution.  The 
early announcement also gave students time to decide if they would seek a medical or 
religious exemption from the requirement.  No Plaintiff asserts an inability to comply 
with the requirement or to seek an exemption if applicable.  Plaintiffs’ claims center 
instead around their desire not to take a COVID-19 vaccination and their belief that 
Rutgers lacks legal authority to condition their attendance on taking one. 
LEGAL STANDARD 
Plaintiffs bear the burden of establishing the existence of subject-matter 
jurisdiction under Fed. R. Civ. P. 12(b)(1).  See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 
1406, 1409 (3d Cir. 1991); see also Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 
2007) (“A motion to dismiss for want of standing is also properly brought pursuant to 
Rule 12(b)(1) . . . .”); Sourovelis v. City of Philadelphia, 103 F. Supp. 3d 694, 700 (E.D. Pa. 
2015) (“A challenge for mootness is properly brought by a Rule 12(b)(1) motion . . . .”). 
If, on a standing or mootness challenge, a defendant relies on evidence beyond 
the pleadings, “no presumptive truthfulness attaches to plaintiff’s allegations,” and “the 
trial court is free to weigh the evidence and satisfy itself as to the existence of its power 
to hear the case.”  Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 
1977); see Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).  “A challenge 
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for mootness . . . constitutes a factual attack on the jurisdictional facts; thus, the court 
may consider evidence outside the pleadings.”  Sourovelis, 103 F. Supp. 3d at 700, citing 
Gould, 220 F.3d at 176-77. 
On a Rule 12(b)(6) motion, the court must accept as true all factual allegations 
and draw all reasonable inferences in the light most favorable to the plaintiff.  See Phillips 
v. County of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008).  Courts, however, need not 
“accept sweeping legal conclusions cast in the form of factual allegations, unwarranted 
inferences, or unsupported conclusions.”  Holiday Vill. E. Home Owners Ass’n, Inc. v. 
QBE INS Corp., 830 F. Supp. 2d 24, 26 (D.N.J. 2011).  Rule 12(b)(6) motions also allow 
courts to consider “exhibits attached to the complaint, matters of public record, and 
documents that form the basis of a claim.”  Id., quoting Lum v. Bank of Am., 361 F.3d 
217, 221 n.3 (3d Cir. 2004).  A document forms the basis of a claim when it is “integral 
to or explicitly relied upon in the complaint.”  Id. (citation omitted); see also Schmidt v. 
Skolas, 770 F.3d 241, 250 (3d Cir. 2014) (“[T]he justification for the integral documents 
exception is that it is not unfair to hold a plaintiff accountable for the contents of 
documents it must have used in framing its complaint, nor should a plaintiff be able to 
evade accountability for such documents simply by not attaching them to his 
complaint.”).  “When allegations contained in a complaint are contradicted by the 
document it cites, the document controls.”  Jeffrey Rapaport M.D., P.A. v. Robin S. 
Weingast & Assocs., Inc., 859 F. Supp. 2d 706, 714 (D.N.J. 2012) (citation omitted); see 
also Polanco v. Omnicell, Inc., 988 F. Supp. 2d 451, 457 n.6 (D.N.J. 2013) (same). 
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ARGUMENT 
I. 
Virtually All of Plaintiffs’ Claims Fail For Lack of Standing or Mootness. 
All of the student Plaintiffs except Ms. Pinto have received religious exemptions 
and therefore need not be vaccinated.  See FAC ¶¶ 13-32.  All persons on campus, 
vaccinated or not, are subject to the same masking requirements: universal masking 
indoors, no masks required outdoors.  Other than Ms. Pinto’s attack on the mandate, 
therefore, and the claims by exempt students that Rutgers cannot exclude them from 
student communal housing or require them to test weekly for COVID, all of Plaintiffs’ 
claims fail pursuant to Fed. R. Civ. P. 12(b)(1) for mootness or lack of standing. 
A. 
The student Plaintiffs who are exempt from the mandate lack 
standing to challenge the mandate. 
Challenges to the vaccine mandate from Plaintiffs who have received religious 
exemptions—all the Plaintiffs other than Ms. Pinto—are moot.  See Wade v. Univ. of 
Conn. Bd. of Trs., No. 3:21-CV-924 (JAM), 2021 WL 3616035, at *8 (D. Conn. Aug. 16, 
2021) (dismissing two plaintiffs’ challenges to UConn’s vaccine mandate as moot 
because they were granted exemptions); Pelekai v. Hawai’i, No. 21-CV-00343-DKW-RT, 
2021 WL 4944804, at *1 (D. Haw. Oct. 22, 2021) (dismissing plaintiffs’ claims as moot 
because they all opted out of or were granted exemptions from vaccine requirements).  
These Plaintiffs’ having received exemptions also moots their challenges to Rutgers’ 
process for considering exemption requests because they have no further claim on 
which the court may “make a substantive determination on the merits.”  N.J. Turnpike 
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Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 30 (3d Cir. 1985) (“If one or more of the 
issues involved in an action become moot . . . the adjudication of the moot issue or 
issues should be refused.”).2 
B. 
Because Rutgers’ vaccination and masking policies apply equally to 
all persons, vaccinated or not, the exempt Plaintiffs have no ripe 
challenge to Rutgers’ policies. 
The Plaintiffs who received religious exemptions raise two kinds of Equal 
Protection claims arising from the restrictions they face by virtue of being unvaccinated.  
One of these claims is moot and the other is unripe. 
First, Plaintiffs claim that Rutgers has treated students differently from faculty 
and staff because it imposed the mandate only on students.  See FAC ¶¶ 295, 305, 313.  
In light of President Joseph R. Biden, Jr.’s Executive Order 14042, however, which 
                                               
2  Although Plaintiffs’ claims that Rutgers has mandated an “experimental” vaccine are 
without merit for the reasons discussed in Point IV below, those claims are also moot.  
Although, at the time Rutgers imposed the mandate, all three ACIP-recommended 
COVID-19 vaccines had received only Emergency Use Authorization (“EUA”) 
approval from the Food and Drug Administration (“FDA”), the FDA has since granted 
full approval for adult use of Pfizer’s vaccine, which Pfizer has branded “Comirnaty.”  
See Norris v. Stanley, 2021 WL 3891615, at *2 (W.D. Mich. Aug. 31, 2021) (FDA’s 
approval of Comirnaty moots claims about COVID vaccine requirements contradicting 
EUA restrictions).  Plaintiffs’ FAC (at ¶¶ 77, 92-94, 125) seems to ask the Court to 
second-guess the FDA’s statements that “Comirnaty has the same formulation as the 
FDA-authorized Pfizer-BioNTech COVID-19 vaccine,” and that although “[t]he 
products are legally distinct,” those differences “do not impact safety or effectiveness.”  
FDA, Q&A for Comirnaty (COVID-19 Vaccine mRNA) (Oct. 20, 2021), 
https://www.fda.gov/vaccines-blood-biologics/qa-comirnaty-covid-19-vaccine-mrna.  
If Plaintiffs believe that the “FDA’s extension of EUA’s at the same time it purports to 
license C[omirnaty] is not legally permissible,” FAC ¶ 94, they should direct that 
complaint to the FDA, not to Rutgers. 
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requires vaccination against COVID-19 for certain employees of federal contractors, 
Rutgers recently announced that all employees must receive their final dose of a 
COVID-19 vaccine by January 4, 2022.  See Universitywide COVID-19 Information, Rutgers 
Univ., https://coronavirus.rutgers.edu/covid-19-vaccine/#:~:text=Therefore%2C%
20to%20ensure%20compliance%20with,are%20the%20only%20permissible%20
exceptions (last visited Nov. 19, 2021).  Plaintiffs’ Equal Protection Claim would have 
failed anyway pursuant to Rule 12(b)(6), but it has become moot. 
Second, the exempt Plaintiffs assert Equal Protection claims premised on the 
theory that they may later be, but are not now, subject to different masking 
requirements than students who are vaccinated.  See FAC ¶¶ 316-18.  There is no basis 
for this claim.  Rutgers requires all persons on its campuses to wear masks while 
indoors, regardless of their vaccination status, and does not require anyone to mask on 
campus while outdoors.  See Guide to Returning to Rutgers, Rutgers Institutional Planning 
and Operations, at 9 (Oct. 25, 2021), https://ipo.rutgers.edu/sites/default/files/
Guide%20To%20Returning%20To%20Rutgers.pdf.  To the extent that Plaintiffs 
purport to base their challenge on the possibility that Rutgers might adopt a different 
policy in the future, that claim is hypothetical and not ripe for adjudication.  See, e.g., 
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401-02 (2013) (“theory of future injury [was] 
too speculative” to be “certainly impending”); Reilly v. Ceridian Corp., 664 F.3d 38, 42 
(3d Cir. 2011) (no standing where plaintiffs allege only “hypothetical, future injury”); 
Behar v. Murphy, No. 20-5206, 2020 WL 6375707, at *5 (D.N.J. Oct. 30, 2020) (Wolfson, 
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J.) (following rescission of the Executive Order that provided the basis for the plaintiff’s 
suit, and because plaintiff had no basis to assert the restrictions would return, plaintiff’s 
claims of potential future injury were too speculative to proceed). 
Only Ms. Pinto, who is unvaccinated and non-exempt, has retained standing to 
challenge Rutgers’ vaccine mandate.  The arguments that Defendants state below with 
respect to Ms. Pinto’s claims would apply with equal force to the other Plaintiffs’ claims 
if they had standing to assert them, but the Court should dismiss the exempt Plaintiffs’ 
challenge to the vaccine mandate for lack of standing pursuant to Rule 12(b)(1). 
C. 
Plaintiff CHD lacks organizational standing to pursue claims not 
possessed by the student Plaintiffs. 
The presence of CHD, purportedly suing on behalf of the same student 
Plaintiffs, see FAC ¶ 11, should not expand the scope of claims that the student Plaintiffs 
may pursue in this case.  If CHD has other members who—unlike the student 
Plaintiffs—requested but did not receive religious exemptions from Rutgers, the Court 
would have to consider the details of those students’ exemption requests.  CHD cannot 
litigate those absent persons’ claims without their active participation, and that 
precludes any claim by CHD to organizational standing.  See Common Cause v. 
Pennsylvania, 558 F.3d 249, 261 (3d Cir. 2009) (listing factors required for organizational 
standing, including lack of need for direct member participation), quoting United Food & 
Com. Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 553 (1996); see also, e.g., 
Nationwide Ins. Indep. Contractors Ass’n, Inc. v. Nationwide Mut. Ins. Co., No. 11-3085, 2012 
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WL 1524381, at *4 (E.D. Pa. May 1, 2012) (rejecting organizational standing where the 
plaintiffs did not allege ability to prove claim without absent persons’ participation).  
Where the facts of a particular member’s case are at issue, organizational representation 
is not appropriate.  See, e.g., Am. Chiropractic Ass’n v. Am. Specialty Health, Inc., 625 F. 
App’x 169, 176 (3d Cir. 2015).  Because CHD does not appear to contend otherwise, 
this brief assumes that CHD’s presence in the case adds nothing of substance. 
II. 
The Court Should Dismiss Plaintiffs’ Constitutional Claims. 
A. 
Plaintiffs fail to allege a violation of their rights to Due Process. 
Ms. Pinto, as a non-exempt, unvaccinated student (who is not currently enrolled 
in classes because she has not complied with the vaccine mandate), possesses standing.3  
Although she ostensibly challenges only the COVID-19 vaccine mandate, the substance 
of her claim is that the Due Process Clause of the Fourteenth Amendment precludes 
legally requiring anyone to take any immunizations (measles, mumps, rubella, whooping 
cough, etc.).  Vaccination requirements, however, are well established in the law, with 
approval from the United States and New Jersey Supreme Courts.  After examining 
those precedents, this Court rightly held that Ms. Pinto’s facial challenge to Rutgers’ 
vaccination requirement is not likely to succeed.  In fact, it cannot succeed and fails to 
state a claim upon which the Court may grant relief. 
                                               
3  To the extent Ms. Pinto premises her claim on the belief that the ACIP should not 
have recommended COVID-19 vaccines, that is a claim she must direct to the ACIP, 
not to Rutgers.  The same is true of her claims that face masks and COVID-19 tests 
supposedly are approved only for emergency use.  See FAC ¶¶ 82, 209. 
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Rational basis review applies to Ms. Pinto’s claims.4  The Fourteenth 
Amendment “provides heightened protection against government interference [only] 
with certain fundamental rights and liberty interests.”  Washington v. Glucksberg, 521 U.S. 
702, 720 (1997) (emphasis added) (collecting cases defining “fundamental” rights).  The 
Supreme Court counseled caution before “expand[ing] the concept of substantive due 
process because guideposts for responsible decision[-]making in this uncharted area are 
scarce and open-ended.”  Id., quoting Collins v. City of Harker Heights, 503 U.S. 115, 125 
(1992).  The limited set of claims that trigger higher scrutiny have been “carefully refined 
by concrete examples involving fundamental rights found to be deeply rooted in our 
legal tradition.”  Id. at 722.  Government actions implicating rights that do not meet 
this high threshold merely require “a reasonable relation to a legitimate state interest to 
justify the action”—in other words, a rational basis.  See id.  Rational basis review thus 
applies unless a claim implicates a fundamental right or alleges discrimination against a 
suspect class.  See Nat’l Ass’n of Theatre Owners v. Murphy, No. 3:20-CV-8289 (BRM) 
(TJB), 2020 WL 5627145, at *12 (D.N.J. Aug. 18, 2020) (“If . . . [a] challenged regulation 
does not discriminate against a suspect class or interfere with a fundamental right, a 
court applies a rational-basis review.”).  Further, even were it necessary for Rutgers to 
establish that controlling the spread of a deadly and contagious disease is a “compelling” 
                                               
4  Plaintiffs’ FAC does not make clear what standard of review Plaintiffs want the Court 
to apply; it recites the standards for all of strict scrutiny, intermediate scrutiny, and 
rational basis review.  See, e.g., FAC ¶ 313.  As explained herein, however, the law is clear 
that rational basis review applies. 
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government interest, the Supreme Court already has decided that it is.  See Roman Catholic 
Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63, 67 (2020). 
Rutgers indisputably has legitimate interests in protecting members of its broad 
community from a potentially deadly disease and in trying to prevent more of the 
massive disruptions that COVID-19 caused for three semesters prior to Fall 2021.  
Accordingly, Rutgers’ decision to require students to take a COVID-19 vaccine as a 
condition of matriculation for the Fall 2021 semester satisfies rational basis review.  See 
Klaassen v. Trs. of Ind. Univ., 7 F.4th 592, 593 (7th Cir. 2021) (approving state university 
vaccine mandate, recognizing that “the rational-basis standard used in Jacobson” is “the 
law established by the Supreme Court”); Harris v. Univ. of Mass., Lowell, No. 21-CV-
11244-DJC, 2021 WL 3848012, at *6 (D. Mass. Aug. 27, 2021) (“[c]urbing the spread 
of COVID-19 is ‘unquestionably a compelling interest,’ and listing “other legitimate 
goals [that] flow from that,” including “returning students safely to campus”); Roman 
Catholic Diocese, 141 S.Ct. at 67 (“Stemming the spread of COVID-19 is unquestionably 
a compelling interest . . . .”); see also Jacobson, 197 U.S. at 31-32 (“[T]he principle of 
vaccination as a means to prevent the spread of smallpox has been enforced in many 
states by statutes making the vaccination of children a condition of their right to enter 
or remain in public schools.”).   
The Supreme Court concluded in Jacobson that it was not for courts to determine 
“which one of two modes was likely to be the most effective for the protection of the 
public against disease.”  197 U.S. at 30.  So long as the law bears a “real or substantial 
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relation” to protecting public health and is not “beyond all question, a plain, palpable 
invasion of rights secured by the fundamental law,” the law must be upheld.  Id. at 31.  
The State has the right to impose requirements “which, according to the common belief 
of the people, are adapted to prevent the spread of contagious diseases.”  Id. at 35.  The 
1905 Supreme Court even presciently anticipated the all-too-political debates in 2021 
over COVID-19 vaccines:  “The fact that the belief [in effectiveness] is not universal is 
not controlling, for there is scarcely any belief that is accepted by everyone.”  Id.; see also 
Phillips v. City of New York, 775 F.3d 538, 542 (2d Cir.) (weighing effectiveness of vaccine 
requirement was “for the legislature, not the individual objectors,” citing Jacobson), cert. 
denied 577 U.S. 822 (2015); Messina v. Coll. of N.J., No. CV2117576ZNQDEA, 2021 WL 
4786114, at *8 (D.N.J. Oct. 14, 2021) (rejecting arguments about efficacy of COVID-
19 vaccines; “it is not this Court’s function to determine the most effective method to 
protect the public against COVID-19.”). 
Plaintiffs seeking to challenge government-imposed restrictions and mandates 
during the COVID-19 pandemic have taken repeated swings at Jacobson but failed to 
dent its core holdings that vaccination requirements do not invade fundamental rights 
and that courts should leave it to the political branches to decide what measures are 
necessary to protect public health.5  Klaassen is only one of many cases reaffirming 
                                               
5  Notably, Plaintiffs ask the Court to strictly apply Jacobson, FAC ¶¶ 6, 207, but 
simultaneously invite the Court to “modify or overrule” it, id. ¶ 9.  The authorities cited 
above demonstrate that federal courts consider Jacobson as controlling, even “in light of 
modern developments.”  See id. ¶ 7. 
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Jacobson in today’s circumstances.  Others include We the Patriots USA, Inc. v. Hochul, 
Nos. 21-2179, 21-2566, 2021 WL 5121983, at *15 (2d Cir. Nov. 4, 2021) (subjecting 
COVID vaccine mandate to rational basis review and denying injunctive relief); 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 [in reviewing 
government action to stem the spread of COVID-19], and so do we.”); League of Indep. 
Fitness Facilities and Trainers, Inc. v. Whitmer, 814 F. App’x 125, 127 (6th Cir. 2020) (noting 
“the police power retained by the states empowers state officials to address pandemics 
such as COVID-19 largely without interference from the courts,” citing Jacobson); Big 
Tyme Invs., L.L.C. v. Edwards, No. 20-30526, 2021 WL 118628 (5th Cir. Jan. 13, 2021) 
(“[A] state’s emergency response to public health crises, including pandemics such as 
COVID-19, is reviewed under the framework originally set forth by the Supreme Court 
in Jacobson.”); Johnson v. Brown, No. 3:21-CV-1494-SI, 2021 WL 4846060, at *12 (D. Or. 
Oct. 18, 2021) (rejecting argument that strict scrutiny applies to challenge of vaccine 
mandate and collecting cases “considering vaccine mandates issued during the COVID-
19 pandemic” that applied rational basis as required by Jacobson); Messina, 2021 WL 
4786114, at *8 (“[O]ther courts—including this one—reviewed similar challenges to 
COVID-19 vaccine policies and have uniformly concluded that Jacobson controls.”); 
Harris, 2021 WL 3848012, at *6 (granting university’s motion to dismiss complaint 
challenging its vaccine mandate and applying rational basis standard established in 
Jacobson); cf. Roman Cath. Diocese, 141 S.Ct. at 70 (Gorsuch, J., concurring) (“Although 
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Jacobson pre-dated the modern tiers of scrutiny, this Court essentially applied rational 
basis review . . . .”); Norwegian Cruise Lines Holdings, Ltd. v. Rivkees, No. 21-22492-CIV-
WILLIAMS, 2021 WL 3471585, at *14 (S.D. Fla. Aug. 8, 2021) (“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 cases from any jurisdiction, by contrast, have taken a different 
view of Jacobson or of university vaccine mandates. 
Moreover, as this Court has recognized, the alleged infringement of a university 
vaccine mandate with exemptions is less than that at issue in Jacobson, which the Supreme 
Court found not to be unconstitutional.  See ECF No. 27 at 10-11.  See also Klaassen, 7 
F.4th at 593-94 (“If conditions of higher education may include surrendering [tuition] 
and following instructions about what to read and write, it is hard to see a greater 
problem with medical conditions that help all students remain safe when learning.”). 
The Massachusetts smallpox vaccine mandate in Jacobson applied to all residents and 
imposed a penalty of $5 (over $150 in today’s dollars) on anyone failing to comply.  See 
197 U.S. at 12.  The statute had no religious exemption and adults could not escape the 
mandate for any reason; exceptions were made only “in favor of children who present 
a certificate, signed by a registered physician, that they are unfit subjects for 
vaccination.”  Id. at 12-13 (quotation omitted).  Rutgers, like the university at issue in 
Klaassen, recognizes both religious and medical exemptions to its vaccination 
requirements, and as recognized in Klaassen, students can avoid the mandate by 
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choosing another university that does not impose one.  Id. at 594.  Accordingly, the 
mandate passes rational basis review under the Due Process Clause. 
B. 
Plaintiffs have not alleged an Equal Protection violation. 
Ms. Pinto also asserts an Equal Protection challenge to the mandate, but it is no 
stronger.  One aspect of that claim is the now-moot contention that Rutgers previously 
applied the vaccine mandate only to students and not staff.  As the court held in Harris, 
a university’s later decision to require most staff to be vaccinated undermines any Equal 
Protection challenge, but even if a university only requires students to be vaccinated, 
this has a rational basis.  See Harris, 2021 WL 3848012, at *6.  That is particularly true 
in New Jersey, which requires universities by law to impose vaccine mandates on 
students.  See N.J.S.A. § 18A:61D-1; N.J.A.C. § 8:57-6.4(c).  This law does not implicate 
fundamental rights.  Public higher education “is not a ‘right’ granted to individuals by 
the Constitution,” Plyler v. Doe, 457 U.S. 202, 221 (1982), and a university’s vaccination 
mandate does not interfere with one’s ability to obtain an education because “Plaintiffs 
have ample educational opportunities” and “may go elsewhere” if they do not like a 
university’s health requirements, Klaassen, 7 F.4th at 593. 
Plaintiffs’ Equal Protection challenge to the vaccine mandate also fails because 
they are not members of a protected class alleging that “disparate treatment was based 
on [their] membership in the protected class.”  Kaul v. Christie, 372 F. Supp. 3d 206, 254 
(D.N.J. 2019).  Being unvaccinated does not confer protected status.  See Phillips, 775 
F.3d at 543-44 (students with religious exemptions to vaccines are not a protected class).  
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In Phillips, as here, “Plaintiffs have not asserted any facts tending to show that 
Defendants favored any religion over another, or that Plaintiffs are part of any 
protected class.”  Phillips v. City of New York, 27 F. Supp. 3d 310, 313 (E.D.N.Y. 2014);6 
see also Norwegian Cruise Line, 2021 WL 3471585, at *14. 
The remainder of Plaintiffs’ Equal Protection arguments are directed not toward 
the vaccine mandate, but to Rutgers’ masking policies, Rutgers’ decision to exclude 
unvaccinated students from communal dormitory living, and Rutgers’ requirement that 
unvaccinated students must regularly test for COVID-19.  See FAC ¶¶ 316-18.  These 
arguments fail, too.  As discussed above, all students, faculty, staff, and visitors are 
treated equally with respect to masking, and neutrally applied mask policies to combat 
the spread of COVID-19 do not violate the Constitution.  See, e.g., Delaney v. Baker, 511 
F. Supp. 3d 55, 73-74 (D. Mass. 2021).  Similarly, all unvaccinated students, regardless 
of their reasons for being unvaccinated, are subject to the same exclusion from 
dormitory living and to the same regular testing requirements.  No student is subject to 
restriction on account of membership in a religion or any other protected status. 
                                               
6  Phillips involved a challenge by people with religious objections to vaccinations to 
New York State and New York City vaccination requirements for children in public 
schools.  The plaintiffs’ children received religious exemptions but were excluded from 
school “each time any schoolmate reports a case of a ‘vaccine preventable disease.’”  
Phillips, 27 F. Supp. 3d at 311.  Citing Jacobson, the district court in Phillips noted that 
“New York’s vaccine program is well within the State’s police power and thus its 
constitutionality is too well established to require discussion.”  Id. at 313. 
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C. 
The Rutgers Policy does not burden the free exercise of religion. 
Plaintiffs mention the free exercise of religion in their Fourteenth Amendment 
claim.  See FAC ¶ 319.  Rutgers’ vaccination, masking, and testing policies, however, do 
not burden free exercise.  See McTernan v. City of York, 577 F.3d 521, 532 (3d Cir. 2009) 
(dismissing a Free Exercise challenge for failure to meet the Iqbal pleading standard 
where the plaintiffs made mere “conclusory allegations” that they were treated 
differently based on their religion). 
Only those government acts “burdening religious practice that [are] not neutral 
or not of general application must undergo the most rigorous of scrutiny.”  See Church 
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).  Unless a rule 
“targets religious conduct for distinctive treatment or advances legitimate governmental 
interest only against conduct with a religious motivation,” is it not subject to strict 
scrutiny.  Id. (emphases added).  For this reason, even if New Jersey law did not provide 
for religious exemptions to vaccination requirements, Plaintiffs could not argue that a 
vaccination requirement applicable equally to all residents violates their right to free 
exercise.  See Phillips, 27 F. Supp. 3d at 312-13 (Jacobson did not require a right for 
religious objectors to be exempt from vaccination laws) (citing cases). 
When the District Court in Klaassen considered those plaintiffs’ Free Exercise 
challenge, it explained that a “vaccine mandate is a neutral rule of general applicability” 
and does not “discriminate among religions” or between the religious and non-religious.  
See No. 1:21-cv-238, 2021 WL 3073926, at *25 (N.D. Ind. July 18, 2021).  “Indeed, the 
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university has chosen to enable the practice of religion by providing a religious 
exemption to this vaccination requirement.”  Id.  “In short, based on this analysis, all 
roads effectively lead to rational basis review.”  Id. at *26; see also Harris, 2021 WL 
3848012, at *7 (no Free Exercise claim where plaintiff did not allege anything suggesting 
that the university “administered their religious exemption policy in a way that burdens 
some religions but not others,” or “coerced her in her religious practices”). 
Here, Rutgers does not treat those who have religious exemptions differently 
from those who have medical exemptions.  The Supreme Court recently explained that 
courts should apply strict scrutiny to COVID-related regulations only when those 
regulations “treat any comparable secular activity more favorably than religious 
exercise.”  Tandon v. Newsom, 141 S.Ct. 1294, 1296 (2021).  Whether a religious and 
secular activity are comparable “must be judged against the asserted governmental 
interest that justifies the regulation at issue” and “the risks various activities pose, not 
the reasons why people gather.”  Id.; see also Tenafly Eruv Ass’n v. Borough of Tenafly, 309 
F.3d 144, 165 (3d Cir. 2002) (“[T]he Free Exercise Clause’s mandate of neutrality 
toward religion prohibits government from deciding that secular motivations are more 
important than religious motivations.”) (internal quotes omitted). 
Neutrally applied mask mandates do not burden religious exercise, either.  See, 
e.g., Resurrection School v. Hertel, 11 F.4th 437, 460 (6th Cir. 2021), vacated, 2021 WL 
5227152, at *1 (masking requirement for K-12 students did not violate the Free 
Exercise clause because the rule was “neutral and of general applicability and satisf[ied] 
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rational-basis review”); Delaney, 511 F. Supp. 3d at 74  (rejecting challenge to a “facially 
neutral” order requiring masks in public spaces). 
All told, nothing about the vaccine mandate and related masking and testing 
requirements for exempt students single out any religious practice.  Accordingly, 
Plaintiffs have failed to state a claim for violation of their free exercise rights. 
D. 
The mandate does not violate the New Jersey Constitution. 
Separate from Plaintiffs’ claims under the federal Constitution, they assert that 
Rutgers’ immunization requirement also violates the New Jersey Constitution.  See FAC 
¶ 320.  Here, too, Plaintiffs do not allege anything unique about the COVID-19 
vaccines; their claim is that the state Constitution precludes all vaccination 
requirements.  Decisions of the New Jersey Supreme Court, however, already have 
soundly rejected this kind of claim. 
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, 58 A.2d 218, 221-22 (N.J. 1948), the New Jersey 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 222.  The New Jersey Supreme Court also observed “that the question 
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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 220. 
Similarly, in Board of Education of Mountain Lakes v. Maas, 152 A.2d 394, 405 (N.J. 
Super. Ct. 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 preventative means.  [Officials] need 
not await an epidemic, or even a single sickness or death, 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. 
Most recently, when the New Jersey Supreme Court recognized that “a 
competent adult person generally has the right to decline to have any medical treatment 
initiated or continued,” it also stated that “[w]hether based on common-law doctrines 
or constitutional theory, the right to decline life-sustaining medical treatment is not 
absolute” and “may yield to countervailing societal interests in sustaining a person’s 
life.”  In re Conroy, 486 A.2d 1209, 1222-23 (N.J. 1985).  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 1225.  Specifically, “[w]hen the patient’s 
exercise of his free choice could adversely and directly affect the health, safety, or 
security of others, the patient’s right of self-determination must frequently give way.”  
Id. (collecting cases, including Jacobson). 
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Based on this authority, the Appellate Division recently held, in a published 
decision arising in the context of an administrative challenge to a public-employee 
vaccine mandate, that the City of Newark “has a managerial prerogative to implement 
its [COVID-19] vaccination mandate,” imposed unilaterally by Newark’s mayor.  See In 
re Newark, Nos. A-0146-21, A-0159-21, 2021 WL 4398457, at *6 (N.J. Super. Ct. App. 
Div. Sept. 27, 2021).  The Appellate Division relied upon Jacobson and Sadlock in doing 
so.  See id. at *4-5.  It reached its decision even though “[t]he City has not cited to any 
statute or regulation authorizing the City or Mayor to establish a vaccination mandate.”  
Id. at *6.  It sufficed for Newark to show “the clear national and state policy to combat 
the health threats posed by COVID-19,” and that the New Jersey Supreme Court “has 
recognized that the COVID-19 pandemic is an extraordinary situation justifying 
extraordinary responses.”  Id. at *6, citing N.J. Republican State Comm. v. Murphy, 236 A.3d 
898, 901-02 (N.J. 2020).  Rutgers, by contrast, has express regulatory authority to require 
students to take any ACIP-recommended vaccine as a condition of matriculation. 
III. 
Plaintiffs’ 42 U.S.C. § 1983 and NJCRA Claims Fail Because They Do Not 
State Any Violations of Constitutional Rights. 
Plaintiffs also assert claims under 42 U.S.C. § 1983 and the New Jersey Civil 
Rights Act (“NJCRA”), but both statutes require Plaintiffs to allege sufficiently that a 
person, acting under the color of state law, deprived them of a right secured by the 
Constitution.  Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995); Hottenstein 
v. City of Sea Isle City, 977 F. Supp. 2d 353, 365 (D.N.J. 2013) (“This district has 
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repeatedly interpreted NJCRA analogously to § 1983,” and both laws require that “the 
Defendant must have violated a constitutional right.”) (citation omitted).  Similarly, 
Monell v. Department of Social Services., 436 U.S. 658, 694 (1978), provides for liability only 
“when execution of a government’s policy or custom” deprives an individual of a 
constitutional right.  See also Sharp v. Kean Univ., 153 F. Supp. 3d 669, 675 (D.N.J. 2015) 
(no Section 1982 claim unless plaintiff can demonstrate that one of [the university’s] 
policies or customs caused the alleged constitutional deprivation.”). 
Because, as explained above, Plaintiffs have not sufficiently pleaded that Rutgers’ 
vaccination, masking, or testing policies violate their rights under the federal or New 
Jersey Constitutions, Plaintiffs have failed to state a Section 1983 or NJCRA claim.  See 
City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985) (“By its terms, . . . the statute 
creates no substantive rights; it merely provides remedies for deprivations of rights 
established elsewhere.”); Dykes v. Se. Pa. Transp. Auth., 68 F.3d 1564, 1570 (3d Cir. 1995) 
(dismissing Section 1983 claims where plaintiff failed to “allege a cognizable violation” 
of his constitutional rights); Wise v. Inslee, No. 2:21-CV-0288-TOR, 2021 WL 4951571, 
at *5 (E.D. Wash. Oct. 25, 2021) (denying preliminary injunction against Proclamation 
mandating COVID-19 vaccination for certain public employees, noting that “Plaintiffs 
cannot succeed on their claim for relief under 42 U.S.C. § 1983 because they have not 
established any constitutional violations”). 
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IV. 
Rutgers’ Policies Violate No State or Federal Law. 
A. 
Plaintiffs fail to allege a violation of federal law. 
Plaintiffs spill much ink analyzing various federal laws involving vaccines, but 
they fail to describe any violations that Rutgers committed.  As an example, Plaintiffs 
mention that the Food, Drug and Cosmetic Act “prohibits anyone from introducing or 
delivering for introduction into interstate commerce any ‘new drug’ or ‘biological 
product’ unless and until the U.S. Food and Drug Administration . . . has approved the 
drug or biological product as ‘safe and effective for its intended use.’”  FAC ¶ 55 
(citations omitted).  Of course, Rutgers has not “introduced” any new vaccine. 
Rutgers does not dispute that federal law governing EUA products requires “that 
individuals to whom the product is administered are informed . . . of the option to 
accept or refuse administration of the product.”  21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III).  
Giving students a choice between taking the vaccine and pursuing their education 
elsewhere is, as Klaassen explicitly recognized, not the same as forcing vaccination.  See 
Klaassen, 2021 WL 3073926, at *25.  In addition, nothing about the vaccine mandate 
conflicts with federal law governing EUA.  Section 564 of the Federal Food, Drug, and 
Cosmetic Act, 21 U.S.C. § 360bbb-3 (“Section 564”), obligates only the Secretary of 
Health and Human Services to establish “conditions designed to ensure that individuals 
to whom the product is administered are informed . . . of the option to accept or refuse 
administration of the product.”  Id. § 360bbb-3(e)(1)(A)(ii); see also Whether Section 564 of 
the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a Vaccine Subject to 
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an Emergency Use Authorization, 45 Op. O.L.C. __, 2 (2021) (slip op.) (determining that 
Section 564 does not “prohibit[] entities from imposing such vaccination requirements 
while the only available vaccines for COVID-19 remain subject to EUAs”); Bridges v. 
Houston Methodist Hosp., No. H-21-1774, 2021 WL 2399994, at *2 (S.D. Tex. June 12, 
2021) (stating in an employment-related action that Section 564 “confers certain powers 
and responsibilities to the Secretary” and “neither expands nor restricts the 
responsibilities of private employers”).  The Secretary met the requirements of Section 
564 by means of the authorized Fact Sheets distributed by healthcare providers 
administering the vaccine to persons receiving it.  See FAC ¶ 70-71.   
Contrary to Plaintiffs’ wholly unsupported assertion that “Section 564 
incorporates the principle that unlicensed medical products cannot be mandated,” id. 
¶ 72, Rutgers has not “mandated” any particular action, but has only made adherence 
to its mandate a condition of enrollment.  Nothing about that mandate conflicts with 
(or, frankly, has anything to do with) the Secretary’s responsibilities or the right to 
informed consent reflected in Section 564.  See, e.g., Valdez v. Grisham, No. 21-cv-783, 
2021 WL 4145746, at *4 (D.N.M. Sept. 13, 2021) (rejecting Section 564-based challenge 
to mandate that hospital workers must receive COVID vaccinations). 
B. 
New Jersey law explicitly authorizes Rutgers’ policies. 
N.J.S.A. § 18A:61D-1 and N.J.A.C. § 8:57-6.4(c), which require Rutgers to obtain 
proof from students that they have taken certain immunizations and authorize Rutgers 
to require other ACIP-recommended vaccinations, disprove Plaintiffs’ claims that 
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Rutgers COVID-19 vaccination requirement is “ultra vires under state law.”  FAC, First 
Claim for Relief.  The same is true of Plaintiffs’ claims about exclusion of unvaccinated 
persons from dormitory living.  State regulations permit Rutgers to exclude vaccine-
exempt students from on-campus presence entirely during a disease outbreak.  See 
N.J.A.C. § 8:57-6.14(d) (“An institution may temporarily exclude a student with medical 
exemptions . . . from classes and from participating in institution-sponsored activities 
during a vaccine-preventable disease outbreak or threatened outbreak.”); see also id. 
§ 8:57-6.15 (same with respect to religious exemptions).  It stands to reason that if 
Rutgers can exclude unvaccinated students from classes entirely during a pandemic, it 
can take the much less extreme step of excluding them only from communal dormitory 
living, where constant masking is infeasible. 
Plaintiffs protest that New Jersey law should allow them to avoid vaccination by 
providing proof that they have natural immunity from COVID-19.  See FAC ¶ 302.  
New Jersey law does contemplate that, in some instances, evidence of immunity may 
suffice, but only pursuant to regulations promulgated by the NJDOH.  See N.J.S.A. 
§ 18A:61D-1.  Those regulations state that a student must provide “laboratory evidence of 
immunity.”  N.J.A.C. § 8:57-6.16 (emphasis added).  At present, however, no laboratory 
test exists that would satisfy the NJDOH requirements for submission of evidence of 
immunity in lieu of vaccination. 
The NJDOH has stated that “[t]he tests used to document immunity must be 
approved by the [FDA] for this purpose and performed by a laboratory that is CLIA 
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certified.”  N.J. Dep’t of Health, Questions and Answers on Immunization Regulations 
Pertaining to Children Attending School/Higher Education: Frequently Asked Questions 34 
(2021), https://nj.gov/health/cd/documents/imm_requirements/vaccine_qa.pdf (last 
visited Nov. 18, 2021).  The FDA has issued an EUA for a serology test for COVID-
19.  See F.D.A., Coronavirus (COVID-19) Update: FDA Authorizes First Point-of-Care 
Antibody Test for COVID-19 (Sept. 23, 2020), https://www.fda.gov/news-events/press-
announcements/coronavirus-covid-19-update-fda-authorizes-first-point-care-
antibody-test-covid-19.  But the FDA advises that such “antibody tests should not be 
used at this time to determine immunity or protection against COVID-19.”  F.D.A., 
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), 
https://www.fda.gov/news-events/press-announcements/fda-brief-fda-advises-
against-use-sars-cov-2-antibody-test-results-evaluate-immunity-or-protection.  Because 
there is no FDA-approved serology test authorized to determine immunity to COVID-
19, NJDOH regulations do not recognize any serology test sufficient for Plaintiffs or 
anyone else to demonstrate natural immunity as an alternative to vaccination.  
V. 
Plaintiffs’ Breach of Contract Claim Fails Because They Do Not Allege 
the Existence of a Contract or How Rutgers Breached It. 
Deeper into their prolix FAC, Plaintiffs allege that Rutgers “entered into a 
binding contract to provide instruction in exchange for a fee under agreed upon terms 
and conditions that did not include a requirement to take a EUA COVID-19 vaccine, 
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undertake routine COVID-19 PCR testing or mask wearing.”  FAC ¶ 338.  Plaintiffs 
claim that Rutgers breached the alleged contract “by adopting unilaterally a Policy 
mandating EUA COVID-19 vaccines, testing and masking to attend Rutgers, without 
any enabling statute or requirement by any health authority.”  Id. ¶ 340.  This claim is 
frivolous because, as Plaintiffs admit elsewhere in the FAC, Rutgers announced the 
immunization requirement five months before the start of the academic semester to 
which it would first apply.  See id. ¶ 194.  The “contract” to matriculate for Fall 2021 
thus included the vaccination mandate that Rutgers announced in March 2021. 
A complaint adequately pleads a breach of contract claim only if it alleges (1) the 
existence of a valid contract, (2) a breach of that contract; (3) resulting damage to the 
plaintiff; and (4) that the plaintiff performed its own contractual duties. MK Strategies, 
LLC v. Ann Taylor Stores Corp., 567 F. Supp. 2d 729, 735 (D.N.J. 2008).  “To prove the 
existence of an express contract, [the plaintiff] must set forth the elements of offer, 
acceptance and consideration.”  Id.  “Under New Jersey law, a complaint alleging breach 
of contract must, at a minimum, identify the contracts and provisions breached.  Failure 
to allege the specific provisions of the contract breached is grounds for dismissal.”  
Potter v. Newkirk, No. 17-08478, 2020 WL 6144756, at *13 (D.N.J. Oct. 20, 2020) 
(internal quotation and citation omitted). 
Here, it is no surprise that Plaintiffs fail to allege formation of a contract with 
the terms they posit.  See Torsiello v. Strobeck, 955 F. Supp. 2d 300, 309 n.5 (D.N.J. 2013) 
(breach of contract claim insufficiently pleaded where the complaint did not allege 
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“when the contract was formed”); Faistl v. Energy Plus Holdings, LLC, No. 12-2879 JLL, 
2012 WL 3835815, at *8 (D.N.J. Sept. 4, 2012) (same). 
VI. 
Plaintiffs’ Equitable Estoppel Claim Fails Because Rutgers Did Not 
Promise a Vaccine-Free Fall 2021 Academic Semester. 
Plaintiffs’ “Estoppel or Detrimental Reliance” claim rests entirely on the January 
2021 statement of a Rutgers official, made during a videotaped panel discussion, that 
he did not expect Rutgers to impose a vaccination mandate.  See FAC ¶¶ 332-35.7  This 
statement does not bear the weight Plaintiffs put on it.  Dr. Gracias did not, and was 
not in a position to, promise what Rutgers would do in the future if the pandemic did 
not recede.  He did not say that the vaccine would never be mandatory, and he did not 
speak about requirements for the Fall 2021 semester, much less state that Rutgers would 
not mandate the vaccine as a condition of attendance for Fall 2021.  His actual 
comments do not support Plaintiffs’ characterizations of them.  See Rapaport, 859 F. 
Supp. 2d at 714 (“When allegations contained in a complaint are contradicted by the 
document it cites, the document controls.”) (citation omitted). 
Dr. Gracias’ statement in January 2021 does not suffice as a basis for an estoppel 
claim.  Rutgers does not dispute that Dr. Gracias seems to have speculated aloud that 
Rutgers would not impose a vaccination mandate.  His speculation, however, could not 
                                               
7  To state a claim for estoppel, a plaintiff must allege “a knowing and intentional 
misrepresentation by the party sought to be estopped under circumstances in which the 
misrepresentation would probably induce reliance, and reliance by the party seeking 
estoppel to his or her detriment.”  D’Agostino v. Maldonado, 78 A.3d 527, 546 (2013) 
(citation omitted). 
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have provided a basis for estoppel even had students been in a position in January 2021 
to make decisions about classes that would begin in September 2021.   
Of all the Plaintiffs, the FAC claims only that Plaintiffs Doe 2 and Jessica 
Moore—both of whom requested and received religious exemptions from the 
mandate—were even aware of Dr. Gracias’ statement.  See FAC ¶¶ 19, 28.  These two 
Plaintiffs claim that they relied on the statement, see id. ¶¶ 237, 333-36, but they do not 
and cannot explain what they could have done with respect to the Fall 2021 semester, 
or not done, prior to Rutgers’ March 2021 announcement of the mandate nearly half a 
year before the semester began.  Any reliance on Dr. Gracias’ comments after Rutgers 
announced the mandate would not be reasonable, and to have an estoppel claim, a 
party’s “reliance must be reasonable and justifiable.”  Foley Mach. Co. v. Amland 
Contractors, Inc., 506 A.2d 1263, 1266 (N.J. Super. Ct. App. Div. 1986).  As of March 
2021, when Rutgers announced its official policy for Fall 2021, Doe 2 and Ms. Moore 
still had ample opportunity to withdraw their acceptance and attend school elsewhere 
once Rutgers announced the mandate.  Indeed, that is why Rutgers announced its policy 
so far in advance.  Plaintiffs’ FAC includes a bare allegation that they could not seek 
alternate education five months before the start of a new semester, FAC ¶ 3, but the 
Court need not accept that unsupported and conclusory statement.   
Separately, and solely as to Plaintiff Pinto, the FAC raises an entirely different 
estoppel claim that Ms. Pinto reasonably expected she could avoid taking a COVID-19 
vaccine if she selected only remote coursework.  See, e.g., FAC ¶¶ 16, 335.  Rutgers’ 
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vaccine policy stated that “[s]tudents whose entire course of study is entirely web based, 
a fully online degree program, and/or fully remote” are exempt from the mandate.  The 
Court already addressed this claim by Ms. Pinto when it denied her motion for 
injunctive relief.  “Rutgers defines what constitutes a fully remote student, not Ms. 
Pinto, and she does not meet Rutgers’ definition.”  ECF No. 27 at 12.  The FAC, 
therefore, fails to allege that Rutgers made a misrepresentation.  The equitable estoppel 
claim as to this representation fails as well. 
VII. The Court Should Disregard Plaintiffs’ Inflammatory and Unsupported 
Claims That Rutgers Had a Financial Motive to Impose the Mandate. 
The Court should disregard Plaintiffs’ baseless accusations that Rutgers had an 
improper financial motive to impose the mandate.  These claims are inflammatory, 
unsupported by any facts, and irrelevant to Plaintiffs’ asserted causes of action.  Many 
pharmaceutical companies have their headquarters or major operations in New Jersey, 
and Rutgers is proud to partner with those companies for many purposes.  But Plaintiffs 
do not, and cannot, allege that Rutgers benefits financially from the sale of any COVID-
19 vaccines.  Doses of these vaccines, moreover, are being manufactured and 
administered in the billions.  Whether or not a small percentage of Rutgers students who 
might not otherwise have taken the vaccine did so because of the mandate would not 
even amount to a rounding error in the calculation of revenues from vaccine sales.  
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Universities around the country have imposed similar mandates.8  So, of course, have 
the federal government9 and numerous private employers.10  It is self-evident that these 
entities are requiring vaccinations in order to be able to return safely to a state of 
normalcy.  The federal government contracted with Pfizer, Johnson & Johnson, 
Novavax, and AstraZeneca to spend billions of dollars to fund the development of 
vaccines and to pre-purchase over 500 million doses of these vaccines, all well before 
Rutgers decided to impose a vaccine mandate.11  The only relevant issue in this case is 
whether Rutgers has the legal right to mandate a vaccine that is ACIP-recommended as 
a condition of enrollment.  It does. 
 
 
                                               
8  See Here’s a List of Colleges That Require Students or Employees to Be Vaccinated Against Covid-
19, The Chronicle of Higher Education, https://www.chronicle.com/blogs/live-
coronavirus-updates/heres-a-list-of-colleges-that-will-require-students-to-be-
vaccinated-against-covid-19 (last updated Nov. 16, 2021); What Colleges Require the 
COVID-19 Vaccine?, Best Colleges, https://www.bestcolleges.com/blog/list-of-
colleges-that-require-covid-19-vaccine/ (last updated Nov. 15, 2021). 
9  President Biden has required all federal employees and employees of federal 
contractors to be vaccinated.  See Exec. Order No. 14043, 86 Fed. Reg. 50,989 (Sept. 
14, 2021); Exec. Order No. 14042, 86 Fed. Reg. 50,985 (Sept. 14, 2021). 
10  See From McDonald’s to Goldman Sachs, here are the companies mandating vaccines for all or 
some employees, NBC News, https://www.nbcnews.com/business/business-news/here-
are-companies-mandating-vaccines-all-or-some-employees-n1275808 (last updated 
Nov. 16, 2021). 
11  See The Trump Administration's 'Operation Warp Speed' Has Spent $12.4 Billion on Vaccines. 
How Much Is That, Really?, Time (Dec. 14, 2020), https://time.com/5921360/operation-
warp-speed-vaccine-spending/. 
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CONCLUSION 
For the foregoing reasons, Defendants respectfully request that the Court 
dismiss Plaintiffs’ First Amended Complaint with prejudice. 
 
Dated: November 19, 2021 
 
Respectfully submitted, 
 
/s/ Jeffrey S. Jacobson  
 
 
 
 
Jeffrey S. Jacobson  
Andrew B. Joseph 
W. Joshua Lattimore 
Jennifer P. Montan  
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 
Joshua.Lattimore@faegredrinker.com 
Jennifer.Montan@faegredrinker.com 
 
Attorneys for Rutgers, The State University of New 
Jersey, et al. 
Case 3:21-cv-15333-ZNQ-TJB   Document 39-1   Filed 11/19/21   Page 44 of 44 PageID: 624

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