Court filing
Rutgers Reply Brief in Support of Motion to Dismiss — Children's Health Defense v. Rutgers (D.N.J.)
Filed January 31, 2022 in Childrens Health Defense v. Rutgers; one of 33 filings from this case.
Record facts
| Filed | 2022-01-31 |
|---|
No. 3:21-cv-15333-ZNQ-TJB · Doc. 43 · 2022-01-31 · Docket on CourtListener
Full text
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’ REPLY
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)
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 1 of 19 PageID: 740
-i-
TABLE OF CONTENTS
INTRODUCTION................................................................................................................ 1
ARGUMENT ......................................................................................................................... 2
I.
Plaintiffs Misstate The Rights At Issue In Their Case ........................................ 2
A.
Jacobson forecloses Plaintiffs’ argument that they have a right to
attend Rutgers without complying with Rutgers’ vaccination
policy .............................................................................................................. 3
B.
Jacobson held that courts should defer to public health officials
on questions of vaccines’ safety and efficacy. ........................................... 4
C.
This is not an “unconstitutional conditions” case .................................... 7
D.
“Unvaccinated” is not a protected class .................................................... 8
II. New Jersey Law Empowers Rutgers To Mandate ACIP-Recommended
Vaccinations, and ACIP Recommended the COVID-19 Vaccines .................. 9
III. Plaintiffs Have No Claim for Breach of Contract or Equitable Estoppel
.................................................................................................................................. 12
A.
Plaintiffs have no claim for breach of contract ...................................... 12
B.
Plaintiffs have no claim for equitable estoppel ....................................... 13
CONCLUSION ................................................................................................................... 14
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 2 of 19 PageID: 741
-ii-
TABLE OF AUTHORITIES
Page(s)
CASES
In re Avandia Mktg., Sales Practices & Prods. Liab. Litig.,
564 Fed. Appx. 672 (3d Cir. 2014) ............................................................................... 14
Beukas v. Bd. of Trs. of Fairleigh Dickinson Univ.,
255 N.J. Super. 420 (App. Div. 1992) .......................................................................... 12
Burcham v. City of Los Angeles,
No. 2:21-cv-07296-RGK-JPR, 2022 WL 99863 (C.D. Cal. Jan. 7,
2022) ................................................................................................................................. 11
Calvary Chapel Dayton Valley v. Sisolak,
140 S. Ct. 2603 (2020) .......................................................................................................4
Children’s Health Defense, Inc. v. Rutgers State Univ. of N.J.,
No. 21-15333 (ZNQ), 2021 WL 4398743 (D.N.J. Sept. 27, 2021) .....................passim
Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) ...........................................................................................................3
Cruzan v. Director, Missouri Department of Health,
497 U.S. 261 (1990) ...........................................................................................................7
F.C.C. v. Beach Comms., Inc.,
508 U.S. 307 (1993) ...........................................................................................................6
Goldfarb v. Solimine,
245 N.J. 326 (2021) ......................................................................................................... 13
Halgren v. City of Naperville,
No. 21-CV-05039, 2021 WL 5998583 (N.D. Ill. Dec. 19, 2021) .................................3
Jacobson v. Massachusetts,
197 U.S. 11 (1905) .....................................................................................................passim
Johnson v. Brown,
No. 3:21-CV-1494-SI, 2021 WL 4846060 (D. Or. Oct. 18, 2021) ........................... 12
Klaassen v. Trs. of Ind. Univ.,
No. 1:21-CV-238 DRL, 2021 WL 3073926 (N.D. Ind. July 18, 2021) ...............passim
Klaassen v. Trs. of Ind. Univ.,
No. 21-2326, 2022 WL 213329 (7th Cir. Jan. 25, 2022) ...............................................3
Klaassen v. Trustees of Indiana University,
7 F.4th 592 (7th Cir. 2021) .......................................................................................passim
Koontz v. St. John’s River Water Mgmt. Dist.,
570 U.S. 595 (2013) ...........................................................................................................7
Lorenz c. CSX Corp., 1 F.3d 1406, 1413 (3d Cir. 1993) ..................................................... 14
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 3 of 19 PageID: 742
-iii-
Marbury v. Madison,
5 U.S. 137 (1803) ................................................................................................................3
Norris v. Stanley,
No. 1:21-cv-756, 2021 WL 3891615 (W.D. Mich. Aug. 31, 2021) ........................... 11
Norwegian Cruise Line Holdings, Ltd. v. Rivkees,
No. 21-22492-CIV, 2021 WL 3471585 (S.D. Fla. Aug. 8, 2021) .................................8
Phillips v. City of New York,
27 F. Supp. 3d 310 (E.D.N.Y. 2014) ...............................................................................8
Potter v. Newkirk,
No. 17-08478, 2020 WL 6144756 (D.N.J. Oct. 20, 2020) ................................... 12, 13
Prudential Ins. Co. of Am v. Bank of Am., Nat’l Ass’n,
14 F. Supp. 3d 591 (D.N.J. 2014) ................................................................................. 14
Smith v. Biden,
No. 1:21-cv-19457, 2021 WL 5195688 (D.N.J. Nov. 8, 2021) ....................................6
Washington v. Glucksberg,
521 U.S. 702 (1997) ...........................................................................................................7
STATUTES, RULES & REGULATIONS
21 U.S.C. § 360bbb-3(e)(1)(A) ............................................................................................ 11
N.J.A.C. § 8:57-6.4 ........................................................................................................ 4, 9, 10
N.J.A.C. § 8:57-6.21.............................................................................................................. 10
N.J.A.C. § 8.57-6.16.................................................................................................................9
N.J.S.A. 18A:64M-1 et seq. ......................................................................................................6
N.J.S.A. § 18A:61D-1 ......................................................................................................... 4, 9
OTHER AUTHORITIES
Q&A for Comirnaty (COVID-19 Vaccine mRNA), Food and Drug
Administration, https://www.fda.gov/vaccines-blood-biologics/qa-
comirnaty-covid-19-vaccine-mrna (last updated Dec. 7, 2021) ................................ 12
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 4 of 19 PageID: 743
-1-
INTRODUCTION
The United States and New Jersey Supreme Courts both have held that state
vaccine mandates do not violate individual constitutional rights. New Jersey law
authorizes Rutgers to mandate any vaccine that the federal Advisory Committee on
Immunization Practices (“ACIP”) has recommended, and the ACIP has strongly
recommended the COVID-19 vaccines. Plaintiffs’ opposition (“Opp.”) to Rutgers’
motion to dismiss their claims asks this Court not to follow the Supreme Court’s
controlling decision, not to construe New Jersey law according to its plain terms, and to
reject the ACIP’s recommendation. No basis exists for this. The Court correctly found
Plaintiffs’ arguments unlikely to succeed when it denied their request for injunctive relief.
See Children’s Health Defense, Inc. v. Rutgers State Univ. of N.J., No. 21-15333 (ZNQ), 2021
WL 4398743 (D.N.J. Sept. 27, 2021) (“CHD”). Nothing has changed.
For decades, students have had to show evidence of vaccination, or else obtain a
waiver, as a condition of attendance. Until now, vaccine requirements had not been
challenged at Rutgers or any other New Jersey university. Jacobson v. Massachusetts, 197 U.S.
11 (1905), which upheld against constitutional challenges a state law mandating
vaccination without exceptions, has stood the test of time, and in it the Supreme Court
anticipated and rejected every one of Plaintiffs’ present-day anti-vaccine arguments.
Plaintiffs challenge the safety and efficacy of the ACIP-recommended COVID-19
vaccines, just as the Jacobson plaintiff questioned the mandatory smallpox vaccine. The
Supreme Court held that states are justified in making mandate decisions based on the
best scientific evidence available and that they need not defer these decisions until the
evidence in support is uncontroverted. And although the Supreme Court has had multiple
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 5 of 19 PageID: 744
-2-
occasions to revisit Jacobson, including during the COVID pandemic, it has not undermined
states’ longstanding vaccine mandate authority at all.
Plaintiffs may disagree with the decisions Rutgers made in the best interests of its
community during the pandemic, but they have no right to attend Rutgers without
following the rules. It does not matter whether Plaintiffs allege claims under the federal
Constitution (they seem to have dropped their claims under the New Jersey Constitution),
for “breach of contract,” or for estoppel. Their claims have no merit, and the Court
should dismiss the First Amended Complaint (“FAC”) with prejudice.
ARGUMENT
I.
Plaintiffs Misstate The Rights At Issue In Their Case
Plaintiffs’ brief argued extensively that they “have a constitutionally guaranteed
right to informed consent and to refuse unwanted medical treatment.” Opp. at 5. This is
not true; the Supreme Court held that the Constitution does not preclude compulsory
vaccination during a public health crisis. See Jacobson, 197 U.S. at 24-31. Regardless, the
issue in this case is not whether Plaintiffs are free to decline the vaccine, but whether they
can compel Rutgers to matriculate them if they do so. They cannot. As the Seventh
Circuit noted in Klaassen v. Trustees of Indiana University, 7 F.4th 592, 593 (7th Cir. 2021),
“vaccination requirements, like other public-health measures, have been common in this
nation.” Rutgers has not violated Plaintiffs’ rights by requiring them to be vaccinated, or
to obtain a waiver, as a condition of attendance.
A.
Jacobson forecloses Plaintiffs’ argument that they have a right to
attend Rutgers without complying with Rutgers’ vaccination policy
As this Court already has held, both the setting of this case (a higher education
vaccine mandate, not compulsory vaccination for the general public), and allowance for
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 6 of 19 PageID: 745
-3-
religious and medical exemptions, makes Rutgers’ vaccine mandate easier to uphold than
the law in Jacobson. See CHD, 2021 WL 4398743, at *5-6. The Seventh Circuit held the
same in Klaassen. When students choose to attend a public university, they agree to
“surrender property” to do so and, once there, to submit to professors’ instructions to
“read things they prefer not to read and write things they prefer not to write.” Klaassen, 7
F.4th at 593. The court thus found it “hard to see a greater problem with” a school’s
imposing “medical conditions that help all students remain safe when learning.” Id. at
594. Further, as also was true in Klaassen, all but one of the Plaintiffs “have claimed the
religious exemption,”1 and therefore “just need to wear masks and be tested, requirements
that are not constitutionally problematic.” Id. at 593.2
Plaintiffs call Jacobson “antiquated,” Opp. at 9, referring to its age, but its reasoning
is no more outdated than Marbury v. Madison, 5 U.S. 137 (1803). Neither Klaassen nor any
other court has questioned the core holding of Jacobson that states may mandate vaccines.
Plaintiffs cite Halgren v. City of Naperville, No. 21-CV-05039, 2021 WL 5998583 (N.D. Ill.
Dec. 19, 2021), but the Halgren court rebuffed the same arguments that Plaintiffs make
here. See id. at *23-33 (declining to apply strict scrutiny and holding that Illinois had a
1 Rutgers will not belabor the standing issue because it agrees that “Adriana Pinto has standing to bring
all claims.” Opp. at 3. The Seventh Circuit has dismissed Klaassen as moot because, unlike Ms. Pinto, the
non-exempt plaintiff in Klaassen conceded that she “ha[s] no plans to return as a student to Indiana
University” regardless of its vaccination policies. Klaassen v. Trs. of Ind. Univ., No. 21-2326,2022 WL
213329, at *1 (7th Cir. Jan. 25, 2022). Plaintiffs here argue that students who have received religious
exemptions retain standing to sue because they fear revocation of their exemptions. See Opp. at 5. This
hypothetical does not suffice to confer standing and did not do so in Klaassen. See id.; see also Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 409, 416 (2013).
2 The lower court in Klaassen, like the Seventh Circuit, “decline[d]. . . to expand substantive due process
rights to include the rights not to wear a mask or to be tested for a virus,” which are “transient and trivial
inconveniences.” Klaassen v. Trs. of Ind. Univ., No. 1:21-CV-238 DRL, 2021 WL 3073926, at *39 (N.D.
Ind. July 18, 2021). “Indiana University has a legitimate interest in promoting the health and safety of its
students. “[M]asks and testing are rationally related” to those interests. Id. at *40.
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 7 of 19 PageID: 746
-4-
rational basis to require healthcare workers to take the vaccine). Plaintiffs also cite Justice
Alito’s dissent in Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2608 (2020), but
that case did not involve a vaccine mandate. It addressed special restrictions on worship
services that the Nevada government did not impose on secular activities, including casino
gambling.
B.
Jacobson held that courts should defer to public health officials on
questions of vaccines’ safety and efficacy.
Plaintiffs’ brief trotted out a series of easily debunked anti-vaccine talking points,
but the inaccuracy of their claims aside, Plaintiffs are wrong about the legal standard
applicable to their claims. They contend that Jacobson holds it is for judges to decide if
vaccines are “safe, efficacious, [and] necessary” before states may mandate them. Opp. at
11. But that is the opposite of what Jacobson held. Jacobson requires judicial deference to
rationally-based public health decisions, like mandating an ACIP-recommended vaccine.
Rutgers in March 2021, like the city of Cambridge in 1902, acted on the “common
belief . . . that [COVID-19 vaccines] ha[ve] a decided tendency to prevent the spread of
this fearful disease and to render it less dangerous to those who contract it.” Jacobson, 197
U.S. at 34. Rutgers has every reason to believe that its mandate decision will stand the test
of time, and the State of New Jersey entrusted Rutgers and other universities the authority
to mandate ACIP-recommended vaccines. See N.J.S.A. § 18A:61D-1; N.J.A.C. § 8:57-6.4.
Plaintiffs here, like the plaintiffs in Jacobson, seek a different policy outcome, seeing “little
or no value to vaccination as a means of preventing the spread of [COVID-19]” and
“think[ing] that vaccination causes other diseases of the body.” Id. at 30. To the extent
that Plaintiffs’ contentions amount to a theory on their part that Rutgers should have
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 8 of 19 PageID: 747
-5-
returned students to campus in Fall 2021 without a vaccine mandate, Jacobson addressed
this very concept of choosing between a consensus view on one hand and a fringe view
on the other: Cambridge then, like Rutgers now, “was not unaware of these opposing
theories, and was compelled, of necessity, to choose between them.” Id. at 30.3
Jacobson’s having placed responsibility for public health decisions in the hands of
policy-makers and not judges means a courtroom is not a proper forum for Plaintiffs’
attempts to cast doubt on the vaccines’ safety and efficacy. Jacobson held that “[t]he
possibility that the [common] belief [about safety or efficacy] may be wrong, and that
science may yet show it to be wrong, is not conclusive.” Id. at 35. “With ever evolving
COVID-19 science, more will be known tomorrow, next month, and next year, but a
courtroom is no place for guesswork . . . .” Klaassen, 2021 WL 3073926, at *31. Plaintiffs’
misguided arguments that the ACIP should not have recommended the COVID-19
vaccine would be better directed to the ACIP or the Centers for Disease Control.
The Jacobson court made clear that “[i]t is no part of the function of a court or a jury
to determine which one of two modes”—to mandate a vaccine or to choose another path
to promote public health—“was likely to be the most effective for the protection of the
public against disease.” 197 U.S. at 30. Nor was the Jacobson Court “prepared to hold that
a minority, residing or remaining in any city or town where [a contagion] is prevalent, and
enjoying the general protection afforded by an organized local government, may thus defy
3 Rutgers cannot allow to go unremarked Plaintiffs’ attempt to rely on the tragic death of a seven-year-
old
child
to
contest
the
vaccines’
safety.
See
Opp.
at
14
&
n.1,
citing
https://medalerts.org/vaersdb/findfield.php?IDNUMBER=1975356 (last visited January 17, 2022). As
the report states, the child had influenza. The child had received a COVID-19 vaccine eleven days before
her death, but nothing in the report suggests that the vaccination caused, contributed to, or had any part
at all in her death.
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 9 of 19 PageID: 748
-6-
the will of its constituted authorities, acting in good faith for all, under the legislative
sanction of the State.” Id. at 37.4
This does not mean, and Rutgers does not argue, that the Constitution “permit[s]
the government to declare a never-ending public emergency and expand its powers
arbitrarily.” Klaassen, 2021 WL 3073926, at *22. Rutgers agrees that “law [and] policy
should be written with a mindset that medicine and science, and the circumstances that
they create, will evolve.” Id. But in March 2021, Rutgers clearly had a rational basis to
require students to take an ACIP-recommended COVID-19 vaccination (or to obtain a
medical or religious exemption) if those students made the decision to return to campus
for in-person instruction for the Fall 2021 semester. See Smith v. Biden, No. 1:21-cv-19457,
2021 WL 5195688 (D.N.J. Nov. 8, 2021) (applying rational basis review to executive orders
that mandated vaccination for federal employees and contractors).
As this Court correctly held, Rutgers’ policy bore “a real and substantial relation”
to its “need to protect public health.” CHD, 2021 WL 4398743, at *5. Plaintiffs rightly
conceded that the purposes of Rutgers’ policy “are legitimate, even compelling state
interests.” Opp. at 12. Plaintiffs’ preference that Rutgers nevertheless should have
foregone a vaccine mandate in favor of “temperature testing [and] self-administered . . .
4 Plaintiffs’ brief referenced their claims that Rutgers has “financial relationships with COVID-19 vaccine
manufacturers”— principally, Rutgers’ participation as a vaccine trial site, as well as occasional grants
from pharmaceutical companies—which they say undermine the rational basis for imposing a vaccine
mandate. Opp. at 12. Of course, one of Rutgers’ primary academic missions, as recognized by the
Legislature, is to conduct scientific research, including clinical trials. See generally New Jersey Medical and
Health Sciences Education Act, N.J.S.A. 18A:64M-1 et seq. Plaintiffs do not plausibly explain how
Rutgers’ actions to fulfill its purpose as a public research university undermines its interest in protecting
its students from a contagion by mandating a federally recommended vaccine. It is Plaintiffs’ “burden to
negate every conceivable basis that might support” the university’s decision. See F.C.C. v. Beach Comms.,
Inc., 508 U.S. 307, 307 (1993) (holding under “rational-basis review . . . those attacking [a rule’s] rationality
have the burden to negate every conceivable basis that might support it”).
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 10 of 19 PageID: 749
-7-
wellness checks,” Opp. at 17, does not suffice as a basis for judicial reversal of Rutgers’
decision. “This is precisely the debate of medical professionals that state policymakers,
including authorized arms of the state, are best suited to resolve in setting policy for
constituents, including here for the students . . . .” Klaassen, 2021 WL 3073926, at *29.
C.
This is not an “unconstitutional conditions” case
Plaintiffs argue that if they have a constitutional right to refuse a COVID-19
vaccination (which they do not), Rutgers cannot coerce them to forego that right by
making it a condition of their matriculation. See Opp. at 18, citing Koontz v. St. John’s River
Water Mgmt. Dist., 570 U.S. 595, 604 (2013). Klaassen considered and rejected this same
“unconstitutional conditions” argument. The plaintiffs there, like Plaintiffs here, cited
Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 279 (1990), and Washington v.
Glucksberg, 521 U.S. 702, 720 (1997), both of which addressed the extent of a person’s right
to refuse lifesaving medical treatment. Vaccines, by contrast, “address a collective enemy,
not just an individual one.” Klaassen, 2021 WL 3073926, at *24. “A vaccine is implemented
as a matter of public health, and historically hasn’t been constitutionally deterred from
state mandate.” Id., citing Jacobson, 197 U.S. at 30-31.
“Given over a century’s worth of rulings” rejecting challenges to vaccination
mandates, not to mention that “the Constitution never provides a fundamental right to a
collegiate education,” the Klaassen plaintiffs’ unconstitutional conditions argument failed.
Klaassen, 2021 WL 3073926, at *24. When universities impose vaccination mandates on
students who prefer not to be vaccinated, this may “present[] the students with a difficult
choice” that students may wish to avoid, but they are not “forcing the students to undergo
injections.” Id. at 25. Requiring students who do not wish to be vaccinated to “transfer
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 11 of 19 PageID: 750
-8-
to a different school, or forego school for the semester or altogether” to avoid vaccination
“doesn’t amount to coercion.” Id.
As in Klaassen, whether Rutgers may mandate vaccines on all students, without
regard to their religious beliefs, is not at issue. Rutgers “provides exemptions unlike the
[law] in Jacobson.” CHD, 2021 WL 4398743, at *5. But students who do not qualify for
exemptions have no right to attend Rutgers without being vaccinated. If prospective
students wish not to take a COVID-19 vaccination for reasons other than religious beliefs
or a medical need, they “‘may go elsewhere’ and seek other educational opportunities.” Id.
at *6 (citation omitted).
D.
“Unvaccinated” is not a protected class
Plaintiffs’ Equal Protection Clause claims fail for the simple reason that choosing
not to be vaccinated does not put one in a legally protected class. See, e.g., Norwegian Cruise
Line Holdings, Ltd. v. Rivkees, No. 21-22492-CIV, 2021 WL 3471585, at *14 (S.D. Fla. Aug.
8, 2021) (“[T]he unvaccinated population is not a protected class that enjoys a fundamental
Constitutional right to remain unvaccinated.”); Phillips v. City of New York, 27 F. Supp. 3d
310, 313 (E.D.N.Y. 2014) (same). Accordingly, the restrictions Rutgers placed on exempt
and therefore unvaccinated students—i.e., barring them from living communally in
Rutgers dormitories—are subject only to the rational basis test. Constant masking is not
possible in a dormitory setting where hundreds of students are sleeping and using common
bath facilities in close quarters. “A university will have trouble operating when each
student fears that everyone else may be spreading disease.” Klaassen, 7 F.4th at 594.
Plaintiffs’ only response in opposing these commonsense measures is to say that the Court
must assume as true “that COVID-19 is not a vaccine-preventable disease.” Opp. at 30.
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 12 of 19 PageID: 751
-9-
The Court need not accept an allegation of purported medical “fact,” however, that
contradicts the guidance of government at every level.
II.
New Jersey Law Empowers Rutgers To Mandate ACIP-Recommended
Vaccinations, and ACIP Recommended the COVID-19 Vaccines
N.J.S.A. § 18A:61D-1 obligates Rutgers to require every student to provide proof
of certain vaccinations. Beyond an enumerated list of mandatory vaccinations (measles,
mumps, etc.), the implementing regulation, N.J.A.C. § 8:57-6.4, allows Rutgers “to
establish additional requirements for student immunizations and documentation that [it]
shall determine appropriate,” so long as the immunizations are “recommended by the
ACIP.” Plaintiffs do not and cannot dispute the ACIP’s strong recommendation, echoed
by public officials at all levels of government, that every eligible person should become
vaccinated against COVID-19. Nothing in the regulation, moreover, distinguishes
between ACIP-recommended vaccines in Emergency Use Authorization (“EUA”) status
and those that have received full governmental approval.5
Plaintiffs ask the Court not to interpret the regulation according to its plain terms.
They contend the words “establish additional requirements for student immunizations and
documentation that such institution shall determine appropriate” allow Rutgers only to
adopt “changes in the types of the documentation that should be accepted as proof of
vaccination.” Opp. at 27. That, however, is not what the plain words of the regulation
say or mean. Plaintiffs, moreover, tried this same flawed argument at the preliminary
5 Rutgers noted in its opening brief (at 27-28) that N.J.S.A. § 18A:61D-1 and N.J.A.C. § 8.57-6.16 permit
evidence of natural immunity in lieu of vaccinations only where students can provide “laboratory
evidence of immunity,” but as of now there exist no approved tests to determine natural immunity or
protection against COVID-19. Plaintiffs repeated their argument that Rutgers discriminates against
students who contend they have natural immunity (see Opp. at 19), but they did not respond to the
absence of approved tests that would provide legally sufficient “laboratory evidence.”
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 13 of 19 PageID: 752
-10-
injunction stage. See ECF No. 24 at 9-11 (“[T]his Court should not be so persuaded 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.”). The Court correctly
rejected it and should do so again.
Plaintiffs’ Opp. (at 25-26) cites other laws that authorize the Commissioner of
Health to mandate vaccines during public health emergencies for the general public and not
just for university students. Those statutes are not at issue in this case. Plaintiffs also cite
N.J.A.C. § 8:57-6.21, which authorizes the Commissioner to impose additional vaccination
requirements on higher education students during viral outbreaks and to suspend
educational vaccine mandates in the event of vaccine shortages. See Opp. at 26. Plaintiffs
appear to contend that because the Commissioner has this authority, the separate
regulation on which Rutgers relies, N.J.A.C. § 8:57-6.4, cannot have authorized Rutgers to
mandate vaccines if the Commissioner has not mandated them. The two regulations,
however, are not in conflict. One authorizes the Commissioner not to wait for an ACIP
recommendation before mandating a vaccine; the other gives narrower authority to
Rutgers and other institutions of higher education, which may mandate only ACIP-
recommended vaccines. Nor is there anything incongruous in the State delegating to
university administrations the same kinds of authority it delegates to “local boards of
health.” Opp. at 31. Universities effectively form their own communities, and in Rutgers’
case, that community is quite large.
Separately, Plaintiffs contend that to the extent the COVID vaccines had only EUA
status from the Food and Drug Administration at the time Rutgers imposed the mandate,
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 14 of 19 PageID: 753
-11-
a state law cannot require them to take the vaccine because a federal law, 21 U.S.C. §
360bbb-3(e)(1)(A), requires the Secretary of Health and Human Services to “establish
conditions” to inform recipients in writing “of the option to accept or refuse
administration of the product” and “of the consequences, if any, of refusing
administration of the product.” This, too, is a rehash of Plaintiffs’ failed arguments at the
injunction stage. See ECF No. 24 at 13-14. As the court stated in Klaassen, “the informed
consent requirement under the EUA statute only applies to medical providers,” students
presumably received “the option to accept or refuse the vaccine [from] their medical
providers,” and “[t]he university isn’t forcing the students to undergo injections.” Klaassen,
2021 WL 3073926, at *25. The student plaintiffs in Klaassen did not dispute that “before
the shot reaches their arms, they are made aware of the risks and the option to refuse.”
Id. Plaintiffs here do not contend otherwise.
Further, before Rutgers’ vaccination deadline, the FDA granted full (non-EUA)
approval to Pfizer’s vaccine. This moots Plaintiffs’ argument. See Burcham v. City of Los
Angeles, No. 2:21-cv-07296-RGK-JPR, 2022 WL 99863, at *8 (C.D. Cal. Jan. 7, 2022)
(FDA approval of Pfizer vaccine mooted EUA claims); Norris v. Stanley, No. 1:21-cv-756,
2021 WL 3891615, at *2 (W.D. Mich. Aug. 31, 2021) (same). Plaintiffs attempt to argue
that the Pfizer vaccine to which the FDA granted full approval is “not currently available,”
Opp. at 13, but the FDA’s own “Q&A” debunks this claim. To the question “How is
Comirnaty (COVID-19 Vaccine, mRNA) related to the Pfizer-BioNTech COVID-19
Vaccine?,” the FDA answered that the two formulations “can be used interchangeably
without presenting any safety or effectiveness concerns” and “providers can use doses
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 15 of 19 PageID: 754
-12-
distributed under EUA to administer the vaccination series as if the doses were the [fully
approved] licensed vaccine.”6 See also, e.g., Johnson v. Brown, No. 3:21-CV-1494-SI, 2021
WL 4846060, at *4-*5 (D. Or. Oct. 18, 2021) (discussing FDA approval of Pfizer vaccine
and the interchangeability of the EUA formulation and the fully licensed formulation; the
two are “chemically and biologically identical”).
III.
Plaintiffs Have No Claim for Breach of Contract or Equitable Estoppel
Plaintiffs’ brief gave only cursory attention to their claims that Rutgers contracted
with them not to mandate the vaccine or else made an extra-contractual promise on which
Plaintiff Pinto relied to her detriment. See Opp. at 32-35. Both claims fail.
A.
Plaintiffs have no claim for breach of contract
Plaintiffs do not seem to contend that a “contract” governing their matriculation
for the Fall 2021 semester existed prior to March 2021, when Rutgers announced the
vaccine mandate. Any plaintiff claiming breach of contract “must, at a minimum, identify
the contracts and provisions breached.” Opening Br. at 29, quoting Potter v. Newkirk, No.
17-08478, 2020 WL 6144756, at *13 (D.N.J. Oct. 20, 2020). Plaintiffs’ defense of their
claim posits that “university bulletins” may form part of a contract between a university
and its students. Opp. at 32, citing Beukas v. Bd. of Trs. of Fairleigh Dickinson Univ., 255 N.J.
Super. 420 (App. Div. 1992). That assertion is wrong, but regardless, Plaintiffs nowhere
identify any “university bulletin,” or any other document, that is at odds with Rutgers’
March 2021 statement that students would not be able to matriculate in August 2021
without being vaccinated against COVID-19. “Failure to allege the specific provisions of
6
Q&A
for
Comirnaty
(COVID-19
Vaccine
mRNA),
U.S.
Food
&
Drug
Admin.,
https://www.fda.gov/vaccines-blood-biologics/qa-comirnaty-covid-19-vaccine-mrna
(last
updated
Dec. 7, 2021).
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 16 of 19 PageID: 755
-13-
the contract breached is grounds for dismissal.” Potter, 2020 WL 6144756, at *13.
Plaintiffs find it significant that Rutgers did not state in a pre-pandemic writing to students
its ability to “alter public health measures as a condition of enrollment.” Opp. at 33. As
noted above, however, state regulations clearly provide for this authority, and Plaintiffs
again fail to identify any contractual provision prohibiting Rutgers from taking such action.
B.
Plaintiffs have no claim for equitable estoppel
The only plaintiff claiming equitable estoppel is Ms. Pinto. The Court already
rejected her claim that she believed she could avoid the mandate by enrolling only in a
class that the professor chose to conduct remotely. As the Court wrote in denying
injunctive relief, “Rutgers defines what constitutes a fully remote student, not Ms. Pinto,
and she does not meet Rutgers’ definition.” CHD, 2021 WL 4398743, at *6.
Ms. Pinto separately tries to rely on statements that Dr. Vicente Gracias made in a
Rutgers “Our Path Forward” video in January 2021, before any vaccines were available to
the general public. Notably, the FAC does not allege that Ms. Pinto saw and relied on this
video; it alleges only that Plaintiffs Doe 2 and Jessica Moore (who received religious
objections) saw and relied on it. See FAC ¶¶ 19, 28. But, even if Ms. Pinto could allege
reliance, her characterizations of words on a publicly accessible video are demonstrably
wrong. Dr. Gracias stated that “the vaccine at this point is not mandatory across the
United States or here in New Jersey,” and “is not mandatory at Rutgers.” Those were
present-tense statements made in January 2021. Dr. Gracias made no “clear and definite
promise” that Rutgers would not mandate the vaccine in the future, as Plaintiffs admit
they must be able to prove as the first element of an estoppel claim. Opp. at 33, citing
Goldfarb v. Solimine, 245 N.J. 326, 339-40 (2021).
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 17 of 19 PageID: 756
-14-
Further, even if Dr. Gracias had made a clear and definite promise and did so with
the expectations that students would rely on it in making their Fall 2021 plans (which he
did not), and even if such reliance would have been reasonable (which it would not have
been), the fourth element of an estoppel claim is “definite and substantial detriment.”
Opp. at 33. The Court need not accept Ms. Pinto’s bare assertion that five months was
not enough time for her to make other arrangements.
Just as the Constitution does not preclude Rutgers’ vaccine mandate, neither does
any contract or extra-contractual promise.
CONCLUSION
Rutgers has nearly 70,000 students, and those students nearly unanimously have
been vaccinated against COVID-19. This case initially purported to be a well-intentioned
challenge to Rutgers’ COVID-19 vaccine mandate brought by a handful of Rutgers
students. Plaintiffs’ opposition brief dropped the mask, however, demonstrating that this
case is much more about CHD’s desire to portray all vaccinations as “harm[ful] and
injur[ious].” Opp. at 1. They are wrong, but this Court is not the place for that debate.
For the foregoing reasons, as well as those stated in Rutgers’ opening brief, the Court
should put an end to this case once and for all by dismissing Plaintiffs’ First Amended
Complaint with prejudice.7
7 “Dismissal . . . with prejudice is appropriate if amendment would be inequitable or futile.” Prudential
Ins. Co. of Am v. Bank of Am., Nat’l Ass’n, 14 F. Supp. 3d 591, 596 (D.N.J. 2014). Among the reasons to
find further amendments futile is “failure to cure deficiencies by amendments previously allowed.” Lorenz
c. CSX Corp., 1 F.3d 1406, 1413 (3d Cir. 1993). “Denial of leave to amend a complaint is especially
appropriate where a party has already been given the opportunity to amend the complaint.” In re Avandia
Mktg., Sales Practices & Prods. Liab. Litig., 564 Fed. Appx. 672, 673 (3d Cir. 2014).
Case 3:21-cv-15333-ZNQ-TJB Document 43 Filed 01/31/22 Page 18 of 19 PageID: 757
-15-
Dated: January 31, 2022
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 43 Filed 01/31/22 Page 19 of 19 PageID: 758File and source
- File
- gov.uscourts.njd.480171.43.0.pdf
- Size
- 357,828 bytes
- SHA-256
- b0a7cc86e4a7bdaffcc4a3acb81b829a2823d86b74b8f4dbc2a9947603a91884
- Our copy
- gov.uscourts.njd.480171.43.0.pdf
- Original
- archive.org