Court filing
Plaintiffs' Supplemental Authority — CDC Guidance and EO 302 — Children's Health Defense v. Rutgers
Filed August 16, 2022 in Childrens Health Defense v. Rutgers; one of 33 filings from this case.
Record facts
| Filed | 2022-08-16 |
|---|
No. 3:21-cv-15333-ZNQ-TJB · Doc. 51 · 2022-08-16 · Docket on CourtListener
Full text
GOMEZ LLC Julio C. Gomez, Esq.
ATTORNEY AT LAW 908.789.1080 Tel
908.789.1081 Fax
jgomez@gomezllc.com
1451 COOPER ROAD
SCOTCH PLAINS, NJ 07076
August 16, 2022
VIA CM-ECF
Hon. Zahid N. Quraishi, U.S.D.J.
United States District Court, District of New Jersey
Clarkson S. Fisher Building & U.S. Courthouse
402 East State Street
Trenton, NJ 08608
Re:
Children’s Health Defense, Inc. et al. v. Rutgers, The State University of New Jersey, et al.
Civ. Case No. 21-15333 (United States District Court, District of New Jersey
Dear Judge Quraishi:
On behalf of Plaintiffs, as supplemental authority in support of Plaintiff’s opposition to Rutgers’
Motion to Dismiss Plaintiffs’ First Amended Complaint (Dkt. No. 39), I respectfully submit the
following: (1) The Center for Disease Control and Prevention (CDC)’s August 11, 2022
announcement of revised COVID-19 guidance; and (2) Governor Murphy’s August 15, 2022,
Executive Order No. 302.
CDC’s recommendations now include, inter alia, that unvaccinated people have the same guidance
as vaccinated people: regardless of vaccination status those exposed to the virus are no longer
required to quarantine (e.g. unvaccinated students can stay in class after being exposed to the
virus), and it is no longer recommended to screen persons without symptoms.
1 Governor
Murphy’s Executive Order (which cites the CDC’s updated guidance) ends the COVID test
mandate for unvaccinated teachers, childcare workers and state workers.
CDC’s updated guidance and Executive Order 302 suggest strongly that Rutgers has no basis to
maintain many of the policies challenged in this case for the upcoming Fall Semester; these
developments also put into question whether Rutgers had sufficient scientific or legal grounds to
adopt its policies in the first place. Although Plaintiffs contend that a higher legal standard applies
to Defendants’ policies and practices, the CDC’s revised regulations and the Governor’s Executive
Order demonstrate that Rutgers does not have a rational basis to continue to discriminate against
unvaccinated students.
Plaintiffs respectfully request an opportunity to brief the significance of these developments vis-à-
vis the parties’ respective legal positions in the pending motion, and the opportunity to address
these or any other matters in oral argument before the Court rules on that motion.
1 See also https://www.cdc.gov/coronavirus/2019-ncov/your-
health/isolation.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fyour-
health%2Fquarantine-isolation.html and https://www.cdc.gov/coronavirus/2019-ncov/community/schools-
childcare/k-12-childcare-guidance.html.
Case 3:21-cv-15333-ZNQ-TJB Document 51 Filed 08/16/22 Page 1 of 15 PageID: 823
Hon. Zahid N. Quraishi, U.S.D.J.
August 16, 2022
Page 2 of 2
Thank you.
Respectfully submitted,
/s/ Julio C. Gomez
cc:
Counsel of Record (via CM/ECF w/ encl.)
Case 3:21-cv-15333-ZNQ-TJB Document 51 Filed 08/16/22 Page 2 of 15 PageID: 824
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Case 3:21-cv-15333-ZNQ-TJB Document 51 Filed 08/16/22 Page 4 of 15 PageID: 826
EXECUTIVE ORDER NO. 302
WHEREAS, on March 9, 2020, I issued Executive Order No. 103,
declaring the existence of a Public Health Emergency, pursuant to
the Emergency Health Powers Act (“EHPA”), N.J.S.A. 26:13-1 et seq.,
and a State of Emergency, pursuant to the New Jersey Civilian
Defense and Disaster Control Act (“Disaster Control Act”),
N.J.S.A. App A:9-33 et seq., in the State of New Jersey for
Coronavirus disease 2019 (“COVID-19”), the facts and circumstances
of which are adopted by reference herein; and
WHEREAS, through Executive Order Nos. 119, 138, 151, 162,
171, 180, 186, 191, 200, 210, 215, 222, 231, 235, and 240, which
were issued each month between April 7, 2020 and May 14, 2021, the
facts and circumstances of which are adopted by reference herein,
I declared that the COVID-19 Public Health Emergency in effect at
the time continued to exist; and
WHEREAS, New Jersey made significant progress in responding
to COVID-19 and mitigating its devastating effects, in particular
in light of the advent of several effective vaccines that, among
other things, had significantly reduced the likelihood of both
contracting and transmitting the variants of COVID-19 that were
present in the United States at the time; and
WHEREAS, on June 4, 2021, in light of these developments, I
signed Assembly Bill No. 5820 into law as P.L.2021, c.103, and
issued Executive Order No. 244, which terminated the Public Health
Emergency declared in Executive Order No. 103 (2020); and
WHEREAS, P.L.2021, c.103 sought to enable the State to bring
an end to its initial Public Health Emergency while still allowing
for an orderly continuation of the Administration’s ability to
order certain public health measures relating to COVID-19,
including but not limited to vaccine distribution, administration,
and management, COVID-19 testing, health resource and personnel
Case 3:21-cv-15333-ZNQ-TJB Document 51 Filed 08/16/22 Page 5 of 15 PageID: 827
2
allocation, data collection, and implementation of recommendations
of the Centers for Disease Control and Prevention (“CDC”) to
prevent or limit the transmission of COVID-19, including in
specific settings; and
WHEREAS, P.L.2021, c.103 explicitly maintained the State of
Emergency declared in Executive Order No. 103 (2020), and stated
it would in no way diminish, limit, or impair the powers of the
Governor to respond to any of the threats presented by COVID-19
pursuant to the Disaster Control Act; and
WHEREAS, in addition to leaving the prior State of Emergency
in effect, nothing in P.L.2021, c.103 prevented the Governor from
declaring any new public health emergency under the EHPA, N.J.S.A.
26:13-1 et seq., should the evolving circumstances on the ground
require such a declaration; and
WHEREAS, Executive Order No. 252, issued August 6, 2021,
required all covered health care and high-risk congregate settings
(“covered settings”) to maintain a policy that required all covered
workers to either provide adequate proof to the covered settings
that they have been fully vaccinated or submit to COVID-19 testing
at minimum one to two times weekly beginning September 7, 2021;
and
WHEREAS, Executive Order No. 253, issued August 23, 2021,
requires all public, private, and parochial preschool programs and
elementary
and
secondary
schools,
including
charter
and
renaissance schools (collectively “school districts”) to maintain
a policy that requires all covered workers to either provide
adequate proof to the school district that they have been fully
vaccinated or submit to COVID-19 testing at minimum one to two
times weekly beginning October 18, 2021; and
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3
WHEREAS, Executive Order No. 264, issued September 20, 2021,
requires all child care centers and other child care facilities
(collectively “child care settings”) to maintain a policy that
requires all covered workers to either provide adequate proof to
the child care settings that they have been fully vaccinated or
submit to COVID-19 testing at minimum one to two times weekly
beginning November 1, 2021; and
WHEREAS, Executive Order No. 271, issued October 20, 2021,
requires that each executive department and agency, including an
independent authority, ensure that certain new contracts, new
solicitations for contracts, extensions or renewals of existing
contracts, and exercising options on existing contracts, include
a clause that the contractor or any subcontractors, at any tier,
that is party to the contract (“covered contractor(s)”), must
maintain a policy that requires all covered workers to either
provide adequate proof to the covered contractor that they have
been fully vaccinated or submit to COVID-19 testing at minimum one
to two times weekly; and
WHEREAS, as the CDC has recognized, viruses can change through
mutation and mutations can result in variants of the virus, and
some variants can spread more easily and quickly than other
variants of the same virus, which may lead to more cases of
COVID-19,
increased
strain
on
healthcare
resources,
more
hospitalizations, and more deaths; and
WHEREAS, since Executive Order No. 244 (2021) took effect,
the CDC has reported that new variants of concern of COVID-19 have
been identified in the United States, particularly the B.1.617.2
(Delta) variant and most recently the B1.1.529, BA.1, BA.1.1, BA.2,
BA.3, BA.4, and BA.5 lineages of the Omicron variant (“Omicron”);
and
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4
WHEREAS, although New Jersey was able to end the initial
Public Health Emergency on account of the effectiveness of vaccines
in reducing transmissibility of COVID-19, the Omicron spread more
easily than other variants and required additional action to
protect the public; and
WHEREAS, on January 11, 2022, I issued Executive Order No.
280, declaring the existence of a new Public Health Emergency,
pursuant to the EHPA, N.J.S.A. 26:13-1 et seq., and continuing the
State of Emergency declared in Executive Order No. 103 (2020)
pursuant to the Disaster Control Act, N.J.S.A. App. A:9-33 et seq.,
in the State of New Jersey due to the surge of cases and
hospitalizations tied to the new variants of COVID-19; and
WHEREAS, on January 11, 2022, I issued Executive Order No.
281, extending various orders to ensure the State continues to
have the necessary resources in place to respond to the new
variants of COVID-19; and
WHEREAS, on January 19, 2022, I issued Executive Order No.
283, requiring certain health care and high-risk congregate
settings to maintain a policy that requires all covered workers to
provide adequate proof to the covered settings that they are up to
date with their COVID-19 vaccinations, including a booster dose
when eligible; and
WHEREAS, on February 10, 2022, I issued Executive Order No.
288, which declared that the Public Health Emergency declared in
Executive Order No. 280 (2022) continued to exist; and
WHEREAS, on March 2, 2022, I issued Executive Order No. 290,
clarifying and extending the timeframes within which covered
settings must require their covered workers to comply with the
vaccination and booster requirements set forth in Executive Order
No. 283 (2022); and
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5
WHEREAS, as a result of significant emergency measures taken,
the State made considerable progress in combating COVID-19
variants and decreasing key statistics, such as the number of
hospitalized patients in the State, the number of daily positive
COVID-19 cases, spot positivity, and the rate of transmission; and
WHEREAS, in light of these developments, on March 4, 2022, I
issued Executive Order No. 292 terminating the Public Health
Emergency declared in Executive Order No. 280 (2022) effective
March 7, 2022, while continuing the State of Emergency declared in
Executive Order No. 103; and
WHEREAS, Executive Order No. 292 (2022) stated that Executive
Order Nos. 111, 112, and 207 (2020), Nos. 252, 253, 264, and 271
(2021) and Nos. 283 and 290 (2022) remain in full force and effect
pursuant to the Disaster Control Act, N.J.S.A. App. A:9-33 et seq.,
except that paragraphs 11 and 13 of Executive Order No. 264 (2021)
were rescinded; and
WHEREAS, Executive Order No. 292 (2022) lifted certain
mitigation protocols, including the requirement that face masks be
worn in school districts and child care settings, while continuing
to require workers in school districts and child care settings to
receive a COVID-19 vaccine or undergo regular testing in order to
help prevent outbreaks and reduce transmission to children; and
WHEREAS, on April 13, 2022, I issued Executive Order No. 294,
clarifying the vaccination and booster requirements applicable to
workers in certain covered settings as set forth in Executive Order
No. 283 (2022) and Executive Order No. 290 (2022); and
WHEREAS, the Department of Health’s (“DOH”) Executive
Directive No. 21-011 (Revised), dated April 6, 2022, provides
protocols for COVID-19 testing and vaccination reporting for
covered settings pursuant to Executive Order Nos. 252, 253, and
264 (2021) and Nos. 283 and 290 (2022), including the requirement
Case 3:21-cv-15333-ZNQ-TJB Document 51 Filed 08/16/22 Page 9 of 15 PageID: 831
6
that school districts report information to DOH using the
Surveillance for Influenza and COVID-19 (“SIC”) Module in the
Communicable Disease Reporting and Surveillance System; and
WHEREAS, throughout the course of the COVID-19 pandemic, the
U.S. Food and Drug Administration (“FDA”) has continually
evaluated data on the safety and effectiveness of the COVID-19
vaccine, including as administered to children of various age
groups; and
WHEREAS, on October 29, 2021 and May 17, 2022, the FDA issued
amendments to its Emergency Use Authorizations (“EUAs”) of the
COVID-19 vaccines which, collectively, expanded eligibility of
certain COVID-19 vaccines and booster doses to children and
adolescents between 5 and 17 years of age; and
WHEREAS, on June 17, 2022, the FDA issued further amendments
to its EUAs of the COVID-19 vaccines which expanded eligibility of
the primary COVID-19 vaccination series of certain COVID-19
vaccines to children between 6 months to 5 years of age; and
WHEREAS, New Jersey has administered over 18.4 million doses
of the COVID-19 vaccine in the State to date, with over 8 million
or 93% of New Jerseyans having received at least one dose of the
vaccine; and
WHEREAS, of the total doses of the COVID-19 vaccine
administered in New Jersey, over 1.9 million doses have been
administered to children between 6 months to 17 years of age; and
WHEREAS, according to the CDC, various treatments and FDA-
authorized
therapeutics
for
COVID-19,
such
as
antiviral
medications and monoclonal antibodies, that can reduce the
likelihood of severe illness and death have become widely
available; and
Case 3:21-cv-15333-ZNQ-TJB Document 51 Filed 08/16/22 Page 10 of 15 PageID: 832
7
WHEREAS, over the last five months, the State has experienced
stable rates on key benchmark statistics, such as the number of
hospitalized patients, patients in intensive care, and ventilators
in use, and the spot positivity of COVID-19 tests; and
WHEREAS, on August 11, 2022, the CDC issued updated “Guidance
for Minimizing the Impact of COVID-19 on Individual Persons,
Communities, and Health Care Systems” in which the CDC recognizes
that high levels of vaccine and infection-induced immunity and the
availability of effective treatments and prevention tools have
substantially reduced the risk for medically significant COVID-19
illness, and associated hospitalization and death; and
WHEREAS, the CDC’s updated guidance notes that as a result of
improved circumstances and the availability of multicomponent
prevention measures, public health efforts to minimize the impacts
of COVID-19 can now be tailored to individual and societal health
factors, with a focus on reducing medically significant illness
and minimizing the strain on the health care system, while removing
barriers to social, educational, and economic activity; and
WHEREAS,
the
CDC’s
updated
guidance
recognizes
that
continuing to increase COVID-19 vaccination coverage, including
booster doses, expanding access to therapeutics, and undertaking
testing and other prevention measures remain essential to prevent
severe outcomes and death from COVID-19, particularly for persons
who are at an increased personal risk for severe adverse reactions
and persons in certain health care and high-risk congregate
settings; and
WHERAS, the CDC’s updated guidance further recognizes that in
general community settings, including school districts and child
care settings, local public health officials and jurisdictions are
equipped with a host of COVID-19 prevention strategies and
localized data to decide which mitigation protocols to use and
Case 3:21-cv-15333-ZNQ-TJB Document 51 Filed 08/16/22 Page 11 of 15 PageID: 833
8
when, based on COVID-19 Community Levels and setting-specific
factors; and
WHEREAS, on August 11, 2022, the CDC also issued updated
“Operational Guidance for K-12 Schools and Early Care and Education
Programs to Support Safe In-Person Learning” in which the CDC
recommends that school districts and child care settings utilize
COVID-19 mitigation protocols on a flexible basis; and
WHEREAS, as reported in the updated guidance for school
districts and child care settings, the CDC is no longer
recommending routine screening testing in school districts and
child care settings, except as may be deemed necessary for certain
high-risk, close contact activities, or when the CDC Community
Levels in the local region of the school district or child care
setting reach high levels; and
WHEREAS, in light of the CDC’s updated guidance, and given
the progress the State has made, the State can begin to responsibly
lift certain mitigation protocols in place, including the
requirement that school districts and child care settings maintain
a policy requiring their unvaccinated covered workers to submit to
weekly or twice weekly COVID-19 testing, as well as the requirement
that covered contractors maintain a policy requiring their
unvaccinated covered workers submit to weekly or twice weekly
COVID-19 testing, as the State continues the next phase of the
COVID-19 response; and
WHEREAS, continued surveillance of school-associated COVID-
19 cases, clusters, and outbreaks is necessary for DOH to
understand and track COVID-19 in the school setting, including
monitoring the impact of vaccination, in order to inform public
health decisions and actions, therefore it is critical that school
districts continue to be required to report into the SIC module;
and
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9
WHEREAS, despite the extensive progress made in combatting
COVID-19, and the ability to lift certain mitigation protocols,
there remains an ongoing threat necessitating that certain actions
taken by the State in response to COVID-19 and new variants, can
remain in place as the State continues the next phase of our COVID-
19 response; and
WHEREAS, the CDC continues to emphasize the importance of
heightened mitigation protocols in certain covered settings,
especially high-risk congregate care settings, because of the
significant risk of spread and vulnerability of the populations
served; and
WHEREAS, continuing to require workers in those covered
settings to be up to date with their COVID-19 vaccinations,
including the first booster dose for which they are eligible, can
help prevent outbreaks and reduce transmission to vulnerable
individuals who may be at higher risk of severe disease; and
WHEREAS, the Constitution and statutes of the State of
New Jersey, N.J.S.A. App. A: 9-33 et seq., N.J.S.A. 38A:3-6.1, and
N.J.S.A. 38A:24 and all amendments and supplements thereto, confer
upon the Governor of the State of New Jersey certain emergency
powers, which I have invoked;
NOW, THEREFORE, I, PHILIP D. MURPHY, Governor of the State of
New Jersey, by virtue of the authority vested in me by the
Constitution and by the Statutes of this State, do hereby ORDER
and DIRECT:
1.
Executive Order Nos. 253 and 264 (2021) are hereby
rescinded.
2.
Nothing in this Order shall prevent a school district or
child care setting from maintaining a vaccination or testing policy
implemented pursuant to Executive Order Nos. 253 and 264 (2021).
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10
3.
School districts shall continue to report information to
DOH using the COVID-19 SIC Module, as set forth in Executive
Directive 21-011, until Executive Directive 21-011 is revoked or
modified by DOH or until the State of Emergency is no longer in
effect, whichever is sooner.
4.
Executive Order No. 271 (2021) is hereby rescinded.
5.
The Commissioner of DOH is hereby authorized to issue a
directive supplementing the requirements outlined in this Order,
which may include, but not be limited to, any requirements for
reporting vaccination and testing data to DOH.
6.
For
purposes
of
this
Order,
“Executive
Branch
departments and agencies” shall mean any of the principal
departments in the Executive Branch of State government and any
agency,
authority,
board,
bureau,
commission,
division,
institution, office, or other instrumentality within or created by
any such department, and any independent State authority,
commission, instrumentality, or agency over which the Governor
exercises executive authority, as determined by the Attorney
General.
7.
It shall be the duty of every person or entity in this
State or doing business in this State and of the members of the
governing body and every official, employee, or agent of every
political subdivision in this State and of each member of all other
governmental bodies, agencies, and authorities in this State of
any nature whatsoever, to cooperate fully in all matters concerning
this Order, and to cooperate fully with any Administrative Orders
issued pursuant to this Order.
8.
No municipality, county, or any other agency or
political subdivision of this State shall enact or enforce any
order, rule, regulation, ordinance, or resolution which will or
might in any way conflict with any of the provisions of this Order,
Case 3:21-cv-15333-ZNQ-TJB Document 51 Filed 08/16/22 Page 14 of 15 PageID: 836
11
or which will or might in any way interfere with or impede its
achievement.
9.
Penalties for violations of this Order may be imposed
under, among other statutes, N.J.S.A. App. A:9-49 and -50.
10.
This Order shall take effect immediately, except that
paragraph 4 of this Order shall take effect September 1, 2022.
11.
This Order shall remain in effect until revoked or
modified by the Governor.
GIVEN, under my hand and seal this
15th day of August,
Two Thousand and Twenty-two,
and of the Independence of
the United States, the Two
Hundred and Forty-Seventh.
[seal]
/s/ Philip D. Murphy
Governor
Attest:
/s/ Parimal Garg
Chief Counsel to the Governor
Case 3:21-cv-15333-ZNQ-TJB Document 51 Filed 08/16/22 Page 15 of 15 PageID: 837File and source
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