Order Denying TRO — Norris v. Stanley

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UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF MICHIGAN 
SOUTHERN DIVISION 
 
JEANNA NORRIS, 
 
 
 
 
) 
 
 
 
Plaintiff, 
 
 
) 
 
 
 
 
 
 
 
) 
No. 1:21-cv-756 
-v- 
 
 
 
 
 
 
) 
 
 
 
 
 
 
 
) 
HON. PAUL L. MALONEY 
SAMUEL L. STANLEY, JR., ET AL.,  
 
) 
 
 
 
Defendants.  
 
) 
 
 
 
 
 
 
 
) 
 
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER 
 
 
 This matter is before the Court on Plaintiff’s motion for a temporary restraining 
order (ECF No. 3). Plaintiff’s lawsuit challenges the constitutionality of the COVID-19 
vaccine mandate for all Michigan State University (“MSU”) employees, created and enforced 
by Samuel L. Stanley, Jr., President of MSU; Dianne Byrum, Chair of the Board of Trustees 
of MSU; Dan Kelly, Vice Chair of the Board of Trustees; Renee Jefferson, Pat O’Keefe, 
Brianna T. Schott, Kelly Tebay, and Rema Vessar, Members of the Board of Trustees; and 
John and Jane Does 1-10 (collectively, “Defendants”). 
 
The decision to grant or deny a temporary restraining order falls within the discretion 
of a district court. See Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008) 
(“The district court’s decision to grant a temporary restraining order, when appealable, is 
reviewed by this court for abuse of discretion.”). Under Rule 65, a court may issue a 
temporary restraining order, without notice to the adverse party, only if two conditions are 
met. Fed. R. Civ. P. 65(b)(1). First, the moving party must establish specific facts through an 
affidavit or a verified complaint showing that an immediate and irreparable injury will result to 
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the moving party before the adverse party can be heard in opposition to the motion. Fed. R. Civ. 
P. 65(b)(1)(A). Second, the counsel for the moving party must certify in writing any efforts made 
to give notice and the reasons why notice should not be required. Fed. R. Civ. P. 65(b)(1)(B). In 
addition, the court must consider each of four factors: (1) whether the moving party 
demonstrates a strong likelihood of success on the merits; (2) whether the moving party 
would suffer irreparable injury without the order; (3) whether the order would cause 
substantial harm to others; and (4) whether the public interest would be served by the order. 
Ohio Republican Party, 543 F.3d at 361 (quoting Northeast Ohio Coalition for Homeless 
and Service Employees Int’l Union v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006)). The 
four factors are not prerequisites that must be met, but are interrelated concerns that must 
be balanced together. See Northeast Ohio Coalition, 467 F.3d at 1009. 
 
The Court finds that Plaintiff has not met her burden.  
Factor 1: Substantial Likelihood of Success on the Merits 
 
Under the first factor, Plaintiff has not demonstrated a strong likelihood of success on 
the merits of her claim. The Plaintiff alleges a substantial likelihood of success on the merits 
on three grounds. First, she alleges that MSU’s COVID-19 vaccine mandate violates her 
Ninth and Fourteenth Amendments right to privacy by forcing her to receive an unwanted 
and unnecessary vaccine. However, there is directly contradictory Supreme Court precedent. 
In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court upheld a 
Massachusetts law that allowed cities to require residents to be vaccinated against smallpox 
based on the state’s valid exercise of its police power to protect the health and safety of its 
citizens. See id. at 38. The Supreme Court further established a rational basis standard of 
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review for vaccination mandates. See generally id. Moreover, in a persuasive case recently 
decided in the U.S. District Court for the Northern District of Indiana, the district court 
denied the plaintiffs’—students at Indiana University—motion for preliminary injunction to 
prevent the university from enforcing its vaccine mandate for students. See Klaassen v. Trs. 
of Indiana, No. 1:21-CV-238 DRL, 2021 WL 3073926 (N.D. Ind., July 18, 2021). The 
district court conceded that although students retain the right to refuse unwanted medical 
treatment, the Fourteenth Amendment permits Indiana University to require its students to 
be vaccinated to protect the public health of its students, faculty, and staff. See id. at *46. 
And on appeal, the Seventh Circuit reiterated that under Jacobson, vaccination mandates are 
subject to a rational basis standard of review. See Klaassen v. Trs. of Indiana, No. 21-2326, 
2021 WL 3281209, at *1 (7th Cir., Aug. 2, 2021). This Court finds the Klaassen opinion to 
be persuasive authority, as there is no binding Sixth Circuit precedent to consult. 
 
Plaintiff’s second argument that she has a substantial likelihood of success on the 
merits rests on the Due Process Clause of the Fourteenth Amendment in that no state may 
“deprive any person of life, liberty, or property, without due process of law . . . .” U.S. Const. 
amend. XIV, sec. 1. Although Plaintiff does not directly assert that she is a for-cause 
employee, she does argue that she has a property interest in her employment and benefits at 
MSU and thus cannot be denied this position without due process of the law—i.e., for refusing 
to receive the COVID-19 vaccine and being terminated as a result. In Michigan, it is 
presumed that Plaintiff is an at-will employee. See Lytle v. Malady, 579 N.W.2d 906, 910 
(Mich. 1998) (“Generally, and under Michigan law by presumption, employment 
relationships are terminable at the will of either party.”). Therefore, due to Plaintiff’s at-will 
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employment status, she does not have a constitutionally protected property interest in her 
employment position and this claim is without merit. See Bd. of Regents of State Colls. v. 
Roth, 408 U.S. 564 (1972).  
 
Third and finally, Plaintiff argues that she demonstrated a substantial likelihood of 
success on the merits because MSU’s vaccine mandate fails to give her the option to refuse 
the vaccine under the federal Emergency Use Authorization (“EUA”) statute. See 21 U.S.C. 
§ 360bbb-3. Under the EUA, the FDA can issue the emergency use of a vaccine that has not 
yet received FDA approval, licensing, or been cleared for commercial distribution due to a 
potential emergency. See id. § 360bbb-3(a)(2). However, the EUA further requires that in 
such a scenario, one of the conditions of the authorization of an unapproved product is to 
allow the individual to whom the product is administered to be given “the option to accept 
or refuse administration of the product.” Id. § 360bbb-3(e)(1)(A)(ii)(III). Here, Plaintiff 
alleges that she has not been given the option to refuse administration of the COVID-19 
vaccine. However, on August 23, 2021, the FDA approved the Pfizer Comirnaty COVID-
19 Vaccine. See FDA Approves First COVID-19 Vaccine, FDA (Aug. 23, 2021), 
https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-19-vaccine. 
Consequently, should Plaintiff be offered the FDA-approved Pfizer Comirnaty vaccine, her 
argument under the EUA statute would be moot, as she would not be entitled the option to 
refuse the vaccine. Thus, Plaintiff has failed to demonstrate a substantial likelihood of success 
on the merits on EUA grounds as well. 
Taking all of these arguments into consideration, because Plaintiff does not have a 
constitutionally protected property interest in her employment position at MSU and is not 
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being denied any constitutional rights under the Fourteenth Amendment, nor is employment 
a fundamental right under the United States Constitution, this matter will receive rational 
basis scrutiny. See League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, 814 F. 
App’x 125, 128 (6th Cir. 2020) (explaining that Governor Whitmer’s COVID executive 
orders merely required a “rational speculation” standard that only offered conceivable 
support). And for Plaintiff to win under this standard of review, Plaintiff must show that 
MSU’s vaccine mandate is not rationally related to a legitimate governmental interest, i.e., 
the health and safety of the public. Plaintiff is unlikely to win under rational basis review. 
Therefore, at this stage, Plaintiff has not shown a substantial likelihood of success on the 
merits. 
Factor 2: Showing of Irreparable Injury 
 
Further, under the second factor, Plaintiff has failed to show irreparable harm that 
will befall her before Defendants have an opportunity to respond to be granted a temporary 
restraining order. See Fed. R. Civ. P. 65(b)(1)(A).  
In Plaintiff’s eyes, she has two options: receive the COVID-19 vaccine and give up 
her constitutionally protected rights to bodily autonomy and privacy, or refuse to receive the 
COVID-19 vaccine and risk termination of her job, a constitutionally protected property 
interest. As such, Plaintiff argues that in either option, her constitutional rights will be 
infringed upon, causing her an irreparable harm. But Plaintiff misconstrues what an 
irreparable harm is. An irreparable harm is an extraordinary harm—one that cannot be fully 
compensated by money damages. See Winter v. NRDC, 555 U.S. 7, 22 (2008). If Plaintiff 
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can be properly compensated by monetary damages, she cannot show that she is facing an 
irreparable harm necessary to receive a temporary restraining order.  
As Plaintiff will not receive the COVID-19 vaccine by August 31, 2021, she could 
consequently be terminated by MSU for failing to receive the vaccine. And if this Court 
determines during litigation that Plaintiff was wrongfully terminated, Plaintiff would indeed 
have proper monetary compensation: her lost wages and benefits she did not receive during 
her period of wrongful termination. These lost wages and benefits can be calculated to an 
exact amount and are not speculative enough to warrant a temporary restraining order. 
Therefore, Plaintiff has failed to show that she faces an irreparable injury in the event that 
MSU terminates Plaintiff’s employment. 
 
Accordingly, because Plaintiff failed to show that she is substantially likely to succeed 
on the merits of this case and that she will face an irreparable injury not compensable by 
monetary damages, this Court need not address the public interest factor in Plaintiff’s 
requested temporary restraining order. Plaintiff’s motion for a temporary restraining order 
must be denied. Therefore, 
 
IT IS HEREBY ORDERED that Plaintiff must serve a copy of her complaint (ECF 
No. 1), a copy of her motion for a temporary restraining order (ECF No. 3), and a copy of 
this Order on Defendants as soon as reasonably possible and no later than Friday, September 
3, 2021, by 5:00 pm. Plaintiff must also serve the Defendants with a proof of service and file 
a proof of service with this Court as soon as reasonably possible. 
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IT IS FURTHER ORDERED that Defendants must file a response to the motion 
for a preliminary injunction no later than Friday, September 10, 2021, by 5:00 pm, and 
Plaintiff may file a reply brief by Wednesday, September 15, 2021, by 5:00 pm.   
 
IT IS FURTHER ORDERED that the Parties shall appear for a hearing on the 
preliminary injunction on Wednesday, September 22, 2021, at 9:00 am at the Federal 
Building, 410 W. Michigan Ave., Kalamazoo, MI 49007. 
 
IT IS SO ORDERED. 
Date:   August 31, 2021   
 
 
 
 
  /s/ Paul L. Maloney                
 
 
 
 
 
 
 
 
Paul L. Maloney 
 
 
 
 
 
 
 
 
United States District Judge 
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