Court filing

Plaintiffs' Reply Brief for Preliminary Injunction — Norris v. Stanley (W.D. Mich.)

Filed September 20, 2021 in Norris v. Stanley; one of 25 filings from this case.

Record facts

Court	U.S. District Court for the Western District of Michigan
Filed	2021-09-20

Full text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN

JEANNA NORRIS, on behalf of herself
)
and all others similarly situated,
)

)

Plaintiffs,

)

)
CIVIL ACTION NO.21-cv-00756-PLM
SAMUEL STANLEY, JR., in his
)

official capacity as President of
)

Michigan State University; DIANNE )

BYRUM, in her official capacity as Chair )

of the Board of Trustees, DAN KELLY, )
in his official capacity as Vice Chair )

of the Board of Trustees; and RENEE
)
JEFFERSON, PAT O’KEEFE,
)

BRIANNA T. SCOTT, KELLY TEBAY,
)
and REMA VASSAR in their official
)
capacities as Members of the Board of
)

Trustees, of Michigan State University,
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and John and Jane Does 1-10,
)

)

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Defendants.
)

PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF MOTION
FOR A PRELIMINARY INJUNCTION
(HEARING SCHEDULED 9/22/21)

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TABLE OF CONTENTS

ARGUMENT .................................................................................................................................. 1
I.
Plaintiff Has Established a Substantial Likelihood of Success on the Merits .................... 1
A.
PLAINTIFF HAS A FUNDAMENTAL, CONSTITUTIONAL RIGHT TO BODILY AUTONOMY AND
TO DECLINE MEDICAL TREATMENT ......................................................................................... 1
1.
Strict Scrutiny Is the Correct Standard of Review .................................................... 1
a. Jacobson Is Inapplicable Here. .................................................................................. 1
b. MSU Does Not Wield Michigan’s Public-Health Police Powers. ............................. 2
c. Apart from Jacobson’s Inapplicability and the Absence of a Police Power
Delegation, Only Appropriately Tailored Measures Serving a Compelling Government
Interest Can Meet Constitutional Muster Here. .............................................................. 7
2.
Contrary to Defendants’ Contentions, the Most Up-to-Date Science Establishes
that Natural Immunity Is as Robust and Durable as That Acquired Through the Most
Effective Vaccines, So MSU Has No Compelling Interest in Requiring Plaintiff to Receive
a Vaccine Against Her Doctor’s Advice ........................................................................... 11
B.
DEFENDANTS’ DIRECTIVE IMPOSES AN UNCONSTITUTIONAL CONDITION ON PLAINTIFF 14
C.
DEFENDANTS’ POLICY IS PREEMPTED BY THE FEDERAL EUA STATUTE........................ 17
II.
Plaintiff Will Suffer Irreparable Harm If the Court Does Not Grant Her Motion for a
Preliminary Injunction .............................................................................................................. 20
III.
The Balance of Equities Weighs in Favor of Granting Plaintiff’s Motion ................... 23
CONCLUSION ......................................................................................................................... 25

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ARGUMENT
The Motion for Preliminary Injunction should be granted. Exercising her constitutional and
statutory rights of informed consent, Plaintiff Norris and those similarly situated (along with
millions of other Americans) do not wish to take a COVID-19 vaccine because they have recovered
from COVID-19 and have natural immunity to it. Forcing Plaintiff to choose between her job and
ability to support her family, and an unnecessary medical intervention, Defendants have issued an
ill-conceived “Directive,” mandating vaccination of all employees. This is not a wrongful
termination or damages suit. This is a suit for prospective declaratory and injunctive relief so that
Plaintiff can maintain her constitutional and statutory rights to bodily integrity and informed
consent, invasion of which inherently constitutes irreparable harm. Strict scrutiny must be applied
to MSU’s unlawful policy, which does not account for natural immunity. Under this standard, the
Directive must be invalidated so that those harmed by it can return, undisturbed, to their roles as
productive MSU employees. Indeed, the Directive is so flawed, crafted from blind reliance on
federal guidance documents that are not law, that its refusal to take account of the scientific fact
and immunological consequences of natural immunity cannot withstand any form of scrutiny.
I.
PLAINTIFF HAS ESTABLISHED A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE
MERITS
A. Plaintiff Has a Fundamental, Constitutional Right to Bodily Autonomy and to
Decline Medical Treatment
1. Strict Scrutiny Is the Correct Standard of Review
a. Jacobson Is Inapplicable Here. Plaintiff has already explained at length why Jacobson
v. Massachusetts, 197 U.S. 11 (1905), Plaintiff has already explained at length why Jacobson v.
Massachusetts, 197 U.S. 11 (1905) does not apply to her case, namely that it involved legislative
action, no ability to demonstrate natural immunity, and a one-time fine (See Plaintiff’s Brief in
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Support of Motion for a Preliminary Injunction (“Plaintiff’s Br.”) at 16-19; Complaint
(“Compl.”)). Ignoring these crucial distinctions, Defendants assert that “rational basis scrutiny
applies to vaccination requirements.” (Defendant’s Response in Opposition to Plaintiff’s Motion
for a Preliminary Injunction (“Def. Opp.”) at 11). But Jacobson predates the creation of tiers of
scrutiny. Additionally, Jacobson did not address the ensuing 115 years of Supreme Court
precedent recognizing and expanding constitutional rights to bodily integrity. While this Court
determined at the TRO stage that rational basis scrutiny applied here, with all respect to the Court,
its TRO decision was wrong on that point. As explicated below, strict scrutiny is the standard by
which Plaintiff’s constitutional claims, which trace to post-Jacobson developments in the law,
must be analyzed.
b. MSU Does Not Wield Michigan’s Public-Health Police Powers. Jacobson is
irrelevant for another, even more fundamental reason. Jacobson deferred to an exercise of the
police power by the Massachusetts Legislature. Jacobson, 197 U.S. 11. But MSU is not the
Michigan Legislature and it operates under no delegation of Michigan’s police power in the area
of public health. Thus, even if Jacobson could be read so broadly as to stand for the proposition
that all legislatively mandated vaccine mandates are subject to rational basis scrutiny (which it
does not), that proposition still does not save MSU’s Directive since it was not the product of
legislative action. MSU does not have independent police power, and no Michigan statutes endow
MSU—through its governing Board of Trustees—with such authority. See MCLA 390.101
through .123, ch. 390 (entitled “Universities and Colleges”). The Michigan Supreme Court takes
a very cautious approach to delegations of the state police power. See, e.g., In re Certified
Questions from U.S. Dist. Ct., W. Dist. of Mich., S. Div., 958 N.W.2d 1, 20 (2020) (holding that
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emergency powers of governor act violated the State’s separation of powers which limits the
ability of the Executive to wield the legislative police power).
While Michigan law permits delegation of the state’s police power, any such grant of
authority must be clearly stated and delineated. As relevant here, it is clear that the University has
been given powers to oversee education and finances (see, e.g., Mich. Comp. Laws Ann. § 390.108
(educational matters), 390.118 & 390.120 (finances)), but MSU has no delegated power to regulate
employee or student public health.1 As clearly stated in G.F. Redmond & Co. v. Michigan Sec.
Comm’n, 192 N.W. 688, 689 (1923):
The power to carry out a legislative policy enacted into law under the police power may be
delegated to an administrative board under quite general language, so long as the exact
policy is clearly made apparent, and the administrative board may carry out in its action
the policy declared and delegated, but it cannot assume it has been vested with power
beyond expressed legislative delegation, and must ever seek its way in the light shed by
the legislative mandate.

In sum, MSU has no authority to implement the vaccine mandate here.2

1 Additionally, compare the general but limited powers of the MSU Board of Trustees to MCLA
390.105, 390.111, and 390.112 (sometimes calling MSU the “Michigan agricultural college,”
MCLA 390.101, which is another name for MSU). Those limited powers refer to MSU’s oversight
of a university farm and the swamp lands in certain Michigan counties. MCLA 390.105, 390.111,
and 390.112. But the police power over those types of lands is expressly delegated to the Michigan
State Board of Agriculture, not to MSU. This reveals that the Michigan Legislature knows how to
make broader police power delegations concerning MSU operations when it so chooses. See also
MCLA 333.9205a(3)-(4) (permitting all Michigan institutions of higher education to make
information available to students regarding “meningococcal disease and other diseases about
which the department [of Health and Human Services may recommend immunization or
immunization information”) (emphasis added); MCLA 333.2611(3)(i) (same Michigan
department can establish a non-profit corporation that can coordinate research with any public
university in the state on public health policies and programs) (emphasis added). Accordingly, the
absence of a statutory delegation of mandate-like, public-health powers to MSU or other state
universities means those powers are reserved to the Michigan Legislature and its Department of
Health and Human Services. Providing information and conducting research are far lesser powers
than the power to mandate vaccination.

2 And having failed to cite any Michigan legislative delegations to support the Directive, MSU has
thus waived the argument that it is exerting delegated public-health police power in all events. See
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Not only does MSU lack the police power entrusted to the State Legislature, its Directive
has been crafted based on a flawed understanding of the enforceability of federal agency guidance
against a state institution. To begin with, the federal government does not possess police power.
See, e.g., United States v. Morrison, 529 U.S. 598, 618 (2000) (referring to “the police power,
which the Founders denied the National Government and reposed in the States”). The Centers for
Disease Control (“CDC”) and Department of Education guidance documents that MSU cites are
not final agency action, are unreviewable by the federal courts, and for those reasons, do not carry
the force of law, and thus cannot form the foundation—let alone the justification—for Defendants’
policy. See Christensen v. Harris County, 529 U.S. 576, 587 (2000) (“[W]e confront an
interpretation contained in an opinion letter, not one arrived at after, for example, a formal
adjudication or notice-and-comment rulemaking. Interpretations such as those in opinion letters—
like interpretations contained in policy statements, agency manuals, and enforcement guidelines,
... lack the force of law ....”).3 The CDC and Department of Education guidance documents that
MSU purports to rely on, see Def. Opp. Br. at 6-8, were simply not issued in accord with APA
notice-and-comment procedures.
Just yesterday, Dr. Marty Makary, a surgeon and professor at Johns Hopkins University,
published a piece documenting the CDC’s ineptitude throughout the pandemic. See Marty

Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 714 (6th Cir. 2001); United States v. Skaggs,
327 F.R.D. 165, 176 (S.D. Ohio 2018) (“due to the absence of privilege arguments in the
government’s opposition brief, the Court assumes that any privilege has been waived”).

3 See also National Min. Ass’n v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014) (“[W]e may review
agency action under the APA [Administrative Procedure Act] only if it is final” and “final
guidance” from EPA did not equate to final agency action under 5 U.S.C. § 704); Appalachian
Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000) (“Only ‘legislative rules’ have the force
and effect of law . . . . A ‘legislative rule’ is one the agency has duly promulgated in compliance
with the procedures laid down in the statute or in the [APA].”).
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Makary, Covid Confusion at the CDC, THE WALL STREET JOURNAL (Sept. 14, 2021), available at
https://www.wsj.com/articles/covid-19-coronavirus-breakthrough-vaccine-natural-immunity-cdc
-fauci-biden-failure-11631548306 (last visited Sept, 14, 2021). “Sound data from the CDC has
been especially lacking on natural immunity from prior Covid infection,” Makary observes. He
describes the Israeli study that Dr. Zervos, Defendants’ expert, claims is unpersuasive because it
is awaiting peer review (see Declaration of Marcus Zervos, M.D., attached to Def. Opp. as Ex. A
(“Zervos Decl.”) at ¶ 64) as “the most powerful and scientifically rigorous study on the subject to
date.” Makary further explains that “[i]n a sample of more than 700,000 people, natural immunity
was 27 times more effective than vaccinated immunity in preventing symptomatic infections.” Id.
(Emphasis added). Yet:
U.S. public health officials continue to dismiss natural immunity, insisting that
those who have recovered from Covid must still get the vaccine. Policy makers
and public health leaders, and the media voices that parrot them, are inexplicably
sticking to their original hypothesis that natural immunity is fleeting, even as at
least 15 studies show it lasts.

Id. (emphasis added).
Makary also elucidates the way in which CDC’s data from Kentucky has been twisted to
support vaccination of the naturally immune (Zervos does the same (Zervos Decl. ¶ 40)).
“[D]espite having data on all 50 states, the CDC only reported data from Kentucky” and Makary
asks whether perhaps “Kentucky was the only state that produced the desired result?” Id. In any
event, the rate of infection in each group (“vaccinated and naturally immune” and “only naturally
immune”) was 0.01%, meaning that infections were exceedingly rare in both groups during the
short, two-month time period in which the cherry-picked study was conducted.
Aside from CDC’s observable track record of disregarding the scientific evidence with
respect to naturally acquired immunity to COVID-19, federal guidance can neither form the basis
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for state action nor substitute for lack of a legislative delegation under Michigan law. Thus, MSU
has circumvented the state legislative process, turning a non-binding (and wrongheaded) federal
agency suggestion into an enforceable mandate that school employees must give up their
constitutional rights to bodily autonomy—or their jobs—even after devoting years or decades of
their lives to serving MSU. The University cannot demand that this Court accord to it the same
deferential standard that applies to a legislative act, while evading the democratic safeguards that
the public scrutiny, floor debate, and passage of such an act entail.4
One of the reasons that some legislative action (though not that which invades rights of
bodily integrity) is afforded only rational basis review is that such decisions are made by elected
officials accountable to the public. See FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14
(1993) (“Where there are plausible reasons for Congress’s action, our inquiry is at an end”)
(cleaned up and emphasis added). But MSU’s Directive was developed in precisely the opposite
manner. Indeed, to this day, Plaintiff does not know who created the Directive and upon what
information those unknown drafters proceeded. While Defendants tout the credentials of Drs.
Stanley (MSU’s President) and Zervos, they do not assert that these two came up with the
Directive, either alone or along with others. (See Def. Opp. at 9, 16).5 And, Dr. Stanley’s opinion

4 As we explain below, strict scrutiny applies without regard to whether the Michigan Legislature
or MSU as an administrator adopts MSU’s Directive. But at the very least, in order to wrap
themselves in Jacobson, MSU would either have to be the Legislature or point to a clear delegation
from the Michigan Legislature. It cannot do either.

5 Defendants principally rely on two cases to support their contentions: Klaassen and Harris (see
Def. Opp. at 13-15). But the application of rational basis review in Klaassen v. Trustees of Ind.
Univ., No. 1:21-cv-238, 2021 WL 3073926 (N.D. Ind. July 18, 2021), is not binding in this court.
Furthermore, the court did not address (and reject) an argument that rational basis review would
only attach if the university vaccine mandate there was the product of the Indiana Legislature.
Finally, that case may have involved different delegations of authority from those presented here.
See also Pl. Br. in Klaassen at 46-52 (Dkt. # 7, Klaassen, 2021 WL 3073926). Furthermore, the
central argument in that case was not about natural immunity, and the plaintiffs were students, not
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about the basis for the Directive is irrelevant under the governing Michigan statute because as
MSU’s President, he is only an ex officio member of the Board “without the right to vote.” MCLA
390.102.
The cases that Defendants cite to support the proposition that the rational basis standard
applies to vaccine mandates likewise do not support their contention. (See Def. Opp. at 11-15).
Nikolao v. Lyon, 875 F.3d 310 (6th Cir. 2017), involved a challenge to a Michigan State Law
requiring vaccination of schoolchildren. And even TJM 64, Inc. v. Harris, 475 F. Supp. 3d 828,
834 (W.D. Tenn. 2020), applied rational basis review to an order issued by a county public health
department. TJM 64 contains no indication that the Western District of Tennessee considered
whether the county public health department was operating under delegated police power. It is far
more likely that such a delegation existed in that Tennessee case than it would here as to MSU
because TJM 64 involved the enactment of a public health department. MSU is not the equivalent
of a public health department by any stretch.
c. Apart from Jacobson’s Inapplicability and the Absence of a Police Power
Delegation, Only Appropriately Tailored Measures Serving a Compelling Government
Interest Can Meet Constitutional Muster Here. The functional equivalent of strict scrutiny
applies to Plaintiff’s constitutional claims:
Although the Supreme Court has declined formally to label its review in this context
as “strict scrutiny,” see Riggins v. Nevada, 504 U.S. 127, 136 (1992), the cases still
ask whether the government has adequately demonstrated a compelling need for the
intrusion, a lack of reasonable alternatives, as well as procedural and medical
safeguards, see id. at 135–36. See also Washington v. Harper, 494 U.S. 210, 229
(1990) (“The forcible injection of medication into a nonconsenting person’s body
represents a substantial interference with that person’s liberty” requiring an
important and legitimate state interest); Cruzan v. Dir., Mo. Dep’t of Health, 497

employees. These same points also apply to Harris v. University of Mass., 2021 WL 3848012 (D.
Massachusetts 2021).
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U.S. 261, 269, 281 (1990) (“This notion of bodily integrity has been embodied in
the requirement that informed consent is generally required for medical treatment,”
but state also has interest in life and informed consent).[6]

Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 506 (6th Cir. 2012) (emphasis
added). Vaccine mandates are a fundamental intrusion into bodily integrity, as receiving an
injection obviously entails such an incursion. Indeed, for more than a century the Supreme Court
has recognized that invasion of one’s body can constitute “an indignity, an assault, and a trespass”
prohibited at common law. Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 252 (1891). See
Washington v. Glucksberg, 521 U.S. 702 (1997) (“[T]he Fourteenth Amendment ‘forbids the
government to infringe … fundamental liberty interests at all, no matter what process is provided,
unless the infringement is narrowly tailored to serve a compelling state interest.’”). See also Vacco
v. Quill, 521 U.S. 793, 807 (1997) (reaffirming holding of Cruzan v. Dir., Mo. Dep’t of Public
Health, 497 U.S. 261, 278 (1990), stating that “our assumption of a right to refuse treatment was
grounded … on well-established, traditional rights to bodily integrity and freedom from unwanted
touching.”).
True, as Defendants observe, the Court in Washington v. Harper, 494 U.S. 210, 211 (1990),
ultimately permitted the forcible injection of an antipsychotic medicine into a prison inmate
because it agreed the government was pursuing a compelling interest in that case. And in
Glucksberg, the Court held that because physician-assisted suicide was not deeply rooted in our
country’s traditions, the plaintiff had no fundamental right to it. Here, however, MSU cannot
demonstrate a compelling government interest in forcing vaccines on employees with naturally

6 Compare, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546
(1993) (government policy can survive strict scrutiny only if it advances compelling interests that
the policy is narrowly tailored to achieve).

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acquired immunity because they pose no risk to others. Nor can MSU demonstrate that its
Directive is narrowly tailored (or cannot be improved by the use of “reasonable alternatives” and
“appropriate medical safeguards,” DeWine, 696 F.3d at 506), given that it permits many of its
employees to work off campus in the COVID-19 era. See, e.g., MSU Office of the President,
Message,
https://president.msu.edu/communications/messages-statements/2020_community_
letters/2020_03_23_coronavirus_update.html (last visited Sept. 14, 2021).
Defendants argue that Plaintiff:
[U]rges that strict scrutiny is warranted, without citing any authority suggesting that
she has a fundamental right to defy an employer’s vaccination requirement.
Instead, she relies upon cases recognizing rights to bodily autonomy and to refuse
medical treatment under certain circumstances.

(Def. Opp. at 12) (emphasis added). Defendants thus appear to acknowledge that while one has a
fundamental right to decline a specific doctor’s recommendation (the “certain circumstances”), a
statute mandating a particular medical treatment for an entire population or group of people can
circumvent any right to refuse said treatment. Setting aside the fact that no such statute exists in
this case, since we dealing with a mere administrative policy unauthorized by a proper police
power delegation, Defendants’ view of the world would permit the government to institutionalize
entire classes of medical treatment by law, forcing it on individuals and overriding ordinary
individualized doctor-patient consultations. But this policymaking at the grand scale makes the
intrusion on basic rights to bodily autonomy more constitutionally dubious, not less.
In any event, assuming arguendo that only rational basis level of analysis should be
applied, MSU’s Directive cannot surmount even that bar. As discussed extensively in Plaintiff’s
opening brief in support of a preliminary injunction and its supporting expert declarations, there is
no reason to treat an individual with demonstrable, naturally acquired immunity any different from
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a vaccinated person. (See Plaintiff’s Br. at 12-20). Immunity is immunity is immunity. Indeed,
this is why vaccine efficacy is measured with reference to natural immunity in scientific testing.
(See Compl. at ¶¶ 32-50). Hence, MSU’s Directive, which explicitly disregards naturally acquired
immunity, is simply irrational and unscientific.
Even if naturally acquired immunity provides a lower level of protection than the Pfizer
and Moderna vaccines (a point which Plaintiff does not concede, since all evidence points to the
contrary), there is no rational basis for treating Ms. Norris differently from someone who has
received the Sinovac, Sinopharm, or Janssen vaccines, which are not FDA approved and confer
only minimal levels of immune protection. Accordingly, Plaintiff has shown that the “means
chosen to effectuate a legitimate purpose are not rationally related to that purpose.” Love v.
Beshear, 989 F. Supp. 2d 536, 547-48 (W.D. Ky. 2014) (“Rational basis review, while deferential,
is not toothless.”).
Defendants argue that they have a compelling interest in the mandatory vaccination policy,
in part due to “practical considerations,” asserting that Plaintiff “invites MSU to put itself in the
untenable position of,” inter alia, “tracking the date of every COVID infection among its staff;
requiring periodic antibody testing of those individuals; monitoring those results for declining
antibodies; and determining when immunization is necessary[.]” (See Def. Opp. at 19-20). In fact,
a more coherent policy would subject all employees to these antibody tests, since immunity
following vaccination also appears to wane. At the very least, it cannot be argued in good faith
that any well-established body of evidence establishes that immunity achieved through WHO-
approved vaccines is long-lasting while assuming—based on no science whatsoever—that natural
immunity evaporates rapidly. Indeed, the scientific community is increasingly realizing that
boosters will be required, as the currently available vaccines have failed to provide durable
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protection against COVID-19 infection. (See Reply Declaration of Dr. Hooman Noorchashm
(“Noorchashm Reply”), Attachment A, at ¶¶ 7, 52-53, 55).
Furthermore, vaccination is unequivocally a medical procedure. As Dr. Noorchashm
explains, medical treatments should never be prescribed on a one-size-fits-all basis. (See
Declaration of Dr. Hooman Noorchashm at ¶ 11, 32 (attached to Plaintiff’s Br. as Ex. B)
(“Noorchashm Decl.”)). If Defendants find themselves in an untenable position as a result of their
decision to require that all employees and students undergo the same medical procedure, they
should not at the same time be able to complain that they may need to allow employee- or student-
specific accommodations where those individuals can show that they already have natural
immunity levels equivalent to or higher than vaccine-based immunity. Plaintiff will not object to
a system that puts the burden of proof on members of the MSU community to demonstrate
individually that they possess the antibodies. Our position is that MSU cannot get away with
pretending that naturally acquired immunity is irrelevant, as that is tantamount to arguing the
extreme and unfounded position that vaccine-based immunity protects others, while naturally
acquired immunity does not. That is not the science. (See Joint Declaration of Drs. Martin
Kulldorff and Jayanta Bhattacharya at ¶¶ 15-24 (attached to Plaintiff’s Br. as Ex. A) (“Joint
Decl.”); Noorchashm Reply at ¶¶ 1-7, 21-46).
2. Contrary to Defendants’ Contentions, the Most Up-to-Date Science Establishes that
Natural Immunity Is as Robust and Durable as That Acquired Through the Most
Effective Vaccines, So MSU Has No Compelling Interest in Requiring Plaintiff to
Receive a Vaccine Against Her Doctor’s Advice
Defendants devote a substantial portion of their Opposition to claiming that “[v]accinating
individuals against COVID-19 is currently the leading prevention strategy to protect individuals
from the virus and end the pandemic” (Def. Opp. Br. at 3-9) and that “stemming the spread of
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COVID-19 is unquestionably a compelling interest.” (Def. Opp. at 14).7 While that may be so,
Defendants have not shown and cannot show that Plaintiff presents a greater risk to herself or the
community than a vaccinated individual.8,9
Through Dr. Zervos, Defendants claim that vaccination can boost or improve naturally
acquired immunity. (Def. Opp. at 6-7). However, simply possessing higher antibody levels does
not necessarily translate into clinical benefit, which is why the epidemiological data demonstrates
that those with naturally acquired immunity only rarely become re-infected (see Noorchashm
Reply ¶¶ 9-30). The idea that more antibodies equates to greater immunological protection both
simple-minded and wrong. (Noorchashm Reply ¶ 4; Joint Decl. ¶¶ 17-18).
Nevertheless, even assuming arguendo that enhancing antibodies does provide additional
protection, that still does not justify mandating vaccination of naturally immune people. Indeed,
everyone’s antibody levels could, in this way, be heightened by receiving a vaccine every week,
but we recognize that at some point a mandate of that type is not warranted, because any benefit

7 Defendants cite Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) to support
this claim. That case did not address a vaccine mandate but rather limitations on church capacity.
Plaintiff is not contending that quelling the spread of COVID-19 is not a compelling interest in the
abstract, but rather that there is no compelling interest in forcing the vaccines on those with
naturally acquired immunity and likewise no such interest in insisting upon a “one size fits all”
approach to the public health challenges COVID-19 poses.

8 Defendants misleadingly quote Plaintiff’s assertion that MSU’s policy lacks a valid public health
basis, claiming that is “bizarre.” But Plaintiff did not claim that mitigating spread of COVID-19
is not a legitimate public health aim, only that requiring those with naturally acquired immunity
to receive a vaccine is not a valid public health measure.

9 Without making a specific argument, Defendants cite to President Biden’s federal vaccine
mandate, imposed by an Executive Order just a few days ago, on September 9, 2021. It ought to
be noted that many legal scholars have questioned the legality of this mandate, and approximately
26 States and counting have indicated that they intend to immediately challenge the OSHA part of
the President’s mandate when that is reduced to final agency action.
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to third parties is too marginal to justify forcing such vaccinations. The same logic applies to
vaccination of those with naturally acquired immunity. (see Noorchashm Reply ¶ 2, 4, 6-7).
Defendants do not even engage with Plaintiff’s point that their acceptance of vaccines such
as the Sinovac, Sinopharm, and Janssen vaccines is illogical, if preventing the spread of COVID-
19 is indeed the Directive’s true goal. If concern about transmission is the guiding principle, then
why do Defendants consider these vaccines—two of which are only about 50% effective at
preventing infection—sufficient to fulfill its mandate, while treating naturally acquired immunity
as non-existent? Plaintiff and those similarly situated are entitled to probe into what lies behind
the Directive. What emerges might show that MSU is more concerned about continuing its influx
of foreign-student tuition dollars, which is assisted by accepting these inferior vaccines approved
for use abroad, than by a pure public-health rationale.
Dr. Zervos’s and Defendants’ specious claim that the duration of naturally acquired
immunity is unknown, justifying the university’s mandate, also fails. (See Def. Opp. at 6-7; Zervos
Decl. ¶¶ 42-51]). As Drs. Bhattacharya and Kulldorff explain, we also do not know how long
immunity from the vaccines lasts. (Joint Decl. ¶ 15). Considerable evidence—including the study
from Israel cited in Plaintiff’s opening brief—indicates that vaccine-acquired immunity wanes
after a number of months. (Joint Decl. ¶¶ 19-20). A study from Qatar likewise found no statistical
difference in the risk of reinfection between those who had been vaccinated versus those who had
been previously infected. (Joint Decl. fn. 15). Indeed, every purported unknown with respect to
naturally acquired immunity that Dr. Zervos alleges in his declaration is equally true as to the
vaccines.
Finally, as Dr. Zervos undoubtedly knows, immunity is multi-faceted and antibodies
constitute only one aspect. Even when antibody levels wane, studies demonstrate prolonged
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immunity from memory T and B cells, bone barrow plasma cells, spike-specific neutralizing
antibodies, and IgG+ memory B cells. (Joint Decl. ¶ 17; Noorchashm Reply ¶ 4). That is why all
epidemiological observational studies indicate that natural immunity is durable and long-lasting—
there is no evidence whatsoever that cellular immunity wanes over time. See Interview of Dorry
Segev, M.D., “COVID-19 Vaccines and Immunocompromised People,” Johns Hopkins
Bloomberg School of Public Health (July 14, 2021), available at bit.ly/3lgAfeC (last visited Sept.
12, 2021) (“antibodies are the tip of the immunologic iceberg, and a lot is going on under the
surface that we cannot measure.”). (Joint Decl. ¶¶ 18-24; Noorchashm Reply ¶¶ 21-42).
To summarize, all of the real-world, observational data establishes that, if curbing the
spread of coronavirus is indeed the goal, naturally acquired immunity serves that end as well or
better than vaccination. Accordingly, Defendants cannot show a compelling interest in subjecting
Plaintiff and those similarly situated (i.e., those with naturally acquired immunity) to their
Directive.
B. DEFENDANTS’ DIRECTIVE IMPOSES AN UNCONSTITUTIONAL CONDITION ON PLAINTIFF
Defendants assert that, in order to establish that the Directive constitutes an
unconstitutional condition, Plaintiff must identify an enumerated constitutional right that she is
being coerced to relinquish. But that is a misreading of the prevailing case law. In Memorial
Hosp. v. Maricopa County, 415 U.S. 250 (1974), the Court concluded that the county
impermissibly burdened the plaintiffs’ rights to travel by extending healthcare benefits only to
indigent, ill individuals who had been residents for at least one year. As the right to travel is not
an enumerated right in the strictest sense (unless it is sufficient that it is encompassed by the liberty
interests protected by the Fourteenth Amendment, which is equally true of rights to bodily
autonomy), it is obvious that the court in Koontz v. St. Johns River Water Management District,
Case 1:21-cv-00756-PLM-SJB ECF No. 21, PageID.711 Filed 09/20/21 Page 16 of 29

570 U.S. 595, 604 (2013), meant an established constitutional right when it referred to the
existence of an “enumerated” right. As discussed, Plaintiff’s rights to bodily autonomy and to
decline medical treatment are well-established rights protected by heightened scrutiny.
Defendants also argue that Plaintiff does not have a fundamental right to public
employment, so the Directive does not create an unconstitutional condition. (See Def. Opp. 21-
22). That argument, too, misses the mark. Unconstitutional conditions doctrine prohibits a state
actor from premising the grant of certain benefits (or the withholding of certain detriments) upon
an individual’s surrendering her constitutional rights. The benefits/detriments in question do not
have to stem from fundamental constitutional rights or, indeed, from any form of constitutional
rights. The focus is on the financial (or other conditional) pressure put on the holders of
constitutional rights. In Speiser v. Randall, 357 U.S. 513 (1958), for instance, the benefit was a
state property tax exemption. Obviously, there is neither a fundamental nor constitutionally
recognized right of any person to receive a property tax exemption. Likewise, in Perry v.
Sinderman, 408 U.S. 593, 597 (1972), the Court expressly stated that
this Court has made clear that even though a person has no “right” to a valuable
government benefit and even though the government may deny him the benefit for
any number of reasons, there are some reasons upon which the government may
not rely. It may not deny a benefit to a person that infringes his constitutionally
protected interests[.]

The Court went on to observe that it had “applied the principle of denials to public employment,”
id. at 597, which is precisely the issue here.
Moreover, in Maricopa County, 415 U.S. at 259, the Court held that medical care is a
“basic necessity of life” and therefore appropriately considered the subject of an unconstitutional
condition. If medical care is a “basic necessity of life,” so is the job that pays the bills of not only
Plaintiff, but her husband and stepchildren. And that leverage is being wrongfully applied to
Case 1:21-cv-00756-PLM-SJB ECF No. 21, PageID.712 Filed 09/20/21 Page 17 of 29

convince her to surrender her constitutional right to exercise informed consent and to decline a
COVID vaccine. The fact that Speiser involved leveraging against a First Amendment right is of
no consequence. Government regulators are endlessly creative, and they should not be able to
evade their obligation to observe constitutional strictures by asserting that a mandate is non-
mandatory simply because it proceeds by way of applying financial leverage—here, in the
extreme—rather than via outright edict.
Citing Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949 F.2d 890. 896 (6th Cir.
1992), Defendants also argue that MSU’s policy is “generally applicable,” affecting “all MSU
students, faculty, and staff ‘equally.’” Accordingly, they contend, Plaintiff possesses no procedural
due process right to be heard. (See Def. Opp. at 22-23). But this argument is predicated upon a
misunderstanding of Plaintiff’s position. She contends that because she possesses naturally
acquired immunity to COVID-19, MSU’s policy does not affect her equally, as in her case the
vaccine is medically unnecessary and poses a risk of harm to her (see Reply Decl. Noorchashm ¶¶
8-12, 16-20, 49). Furthermore, MSU’s Directive is not generally applicable; it has carved out
exemptions based on certain medical conditions and religious beliefs from its mandate. See Fulton
v. City of Phila., Pa., 141 S. Ct. 1868 (2021) (“A law is not generally applicable if it invites the
government to consider the particular reasons for a person’s conduct by providing a mechanism
for individualized exceptions”) (internal citations and quotation marks omitted). Fulton rejected
arguments that government action should be viewed with lenity (put otherwise, that it should
possess heightened powers) when (1) regulating its internal operations, id. at 1878, and (2) entering
into employment contracts. Id. That MSU can (in this case properly within its delegated police
power to manage MSU’s finances) decide on its employees’ salaries and type of work they perform
Case 1:21-cv-00756-PLM-SJB ECF No. 21, PageID.713 Filed 09/20/21 Page 18 of 29

is constitutionally irrelevant. MSU is not the equivalent of a private employer and does not enjoy
the rights such an employer may possess to impose a COVID vaccine mandate.
Finally, without citing any authority, Defendants argue that Plaintiff is not entitled to be
heard at this stage in the proceedings, since she “has not, and cannot, allege that she would be
disciplined without being offered further process.” (Def. Opp. at 24). But Defendants’ Directive
specifically states that those who do not comply with their vaccine mandate will face disciplinary
action, including termination. That is immediate and direct, not speculative. Plaintiff—the
family’s primary breadwinner—should not have to wait until she is actually fired to seek relief.
Compare Abbott Labs. v. Gardner, 387 U.S. 136 (1967) (holding that drug companies could bring
a pre-enforcement review challenge where “the regulation [wa]s directed at them in particular; it
require[d] them to make significant changes in their everyday business practices; [and] if they fail
to observe the … rule they are clearly exposed to the imposition of strong sanctions”). The same
is true, by analogy, to the famed Abbott Labs ripeness case here. The Directive applies to Norris
(as well as other MSU employees) in particular; they must make a significant change in their
medical choices (by taking an unwanted and for-them medically unnecessary vaccine); and if they
do not comply with the Directive, Norris and those similarly situated are exposed to severe
economic sanctions.
C. DEFENDANTS’ POLICY IS PREEMPTED BY THE FEDERAL EUA STATUTE
In addition to her constitutional claims, Plaintiff also possesses a statutory right to informed
consent—a right protected by preemption doctrine. See Complaint at Count III. Such a
preemption claim provides stronger rights to Plaintiff than the baseline level applicable to
constitutional strictures because no balancing of competing government interests (whether tested
by strict or rational basis scrutiny) can defeat such rights. Plaintiff and those similarly situated
Case 1:21-cv-00756-PLM-SJB ECF No. 21, PageID.714 Filed 09/20/21 Page 19 of 29

possess an absolute, statutory right to refuse an EUA-approved vaccine. This makes sense because
such vaccines are subjected only to an abbreviated form of review, and basic medical ethics dictate
that individuals should not be forced to take such medical products.
Defendants claim that the informed consent provision of the EUA statute, 21 U.S.C.
§ 360bbb-3, means only that the health care worker administering the vaccine must obtain consent
in a literal sense and convey the risks and benefits associated with the vaccine before inoculating
the patient. (See Def. Opp. at 24-25). This arid reading of the statute makes a mockery of it. Some
individuals may be able to easily withstand unemployment to avoid taking a vaccine but many
Americans are not so fortunate. Ms. Norris and other prospective class members are simply not
the sorts of workers able to take on a job like Defendants—i.e., as an MSU Board Member working
for no pay. See MCLA 390.103 (“The members of the board of trustees shall serve without
compensation, but shall receive the actual and necessary expenses [they incur].”). Plaintiff class
members will in most cases not be able to risk being thrown into unemployment for long periods,
jeopardizing their family’s health insurance and, worse yet, being pushed into poverty. In short,
the Directive is unmistakably coercive and impliedly preempted by the EUA statute. See Geier v.
American Honda Motor Co., 529 U.S. 861, 872-73 (2000) (local tort law impliedly preempted by
a federal automobile safety standard); Yates v. Ortho-McNeil-Janssen Pharms., Inc., 808 F.2d 281,
297-98 (6th Cir. 2015) (New York law impliedly preempted by federal regulatory law because it
was impossible to unilaterally alter drug dosage without violating FDA regulations).
Defendants next claim that because the Pfizer Comirnaty vaccine has been fully approved,
Plaintiff’s preemption claim is moot. (See Def. Opp. at 26). But, as Plaintiff argued, the Comirnaty
is not actually available. (See Plaintiff’s Br. at 27-28). In reality, if she is to receive a vaccine
somewhere in Michigan (or any other part of the country, for that matter), it would undoubtedly
Case 1:21-cv-00756-PLM-SJB ECF No. 21, PageID.715 Filed 09/20/21 Page 20 of 29

be one of the three that remain approved only for emergency use (the Pfizer BioNTech, Moderna,
and Janssen vaccines). Though Defendants claim that FDA’s description of the vaccines as
“legally distinct,” “does not result in an actual legal distinction that saves [Plaintiff’s] claim,” they
do not further unpack that argument. Typically, one legally distinct category is treated one way
while a different legal category is treated another. Just so here. EUA vaccines, by statute, extend
to recipients the right to accept or reject. By contrast, fully approved vaccines are not accompanied
by statutory informed-consent protections. Hence, whether or not the Pfizer BioNTech and
Comirnaty vaccines are factually identical is irrelevant. The legal point is that the former requires
informed consent as a matter of the EUA statute and the latter does not.10 No provision of the
EUA statute, nor any judicial decision, holds that when an EUA vaccine is of the same formulation
as an unavailable but approved vaccine, informed-consent rights no longer exist. Rather, the EUA
statute requires EUA-approved vaccines to be withdrawn from the market once a fully approved
alternative is available. The negative effect this would have on EUA-approved BioNTech,
Moderna and Janssen vaccines may explain the slow roll-out of Comirnaty, but it does not justify
a bait-and-switch under which the Pfizer BioNTech vaccine is treated as though it is Comirnaty.
Finally, it is important to note that MSU distances itself from the Office of Legal Counsel’s
opinion, which disregards the implied preemption effect of the EUA statute. (Def. Opp. Br. at 25
n.14). Instead, MSU’s principal defense to preemption is the overly facile and legally irrelevant

10 Even if the Comirnaty vaccine were commercially available, Plaintiff would challenge MSU’s
Directive on EUA grounds for two reasons: (1) it would raise entirely new legal issues and ensuing
infirmities if MSU were functionally requiring employees to take a particular vaccine
manufactured by a single company; and (2) even if statutory informed-consent requirements were
no longer applicable in the wake of the coupling of (a) full approval and (b) commercial
availability, Plaintiffs would possess their same constitutional rights to exercise informed consent
set out in the first two causes of action mounted in the Complaint.
Case 1:21-cv-00756-PLM-SJB ECF No. 21, PageID.716 Filed 09/20/21 Page 21 of 29

point that the Comirnaty vaccine has received full FDA approval. Plaintiff also notes that the
Comirnaty is not commercially available because if it were, then all of the three EUA vaccines
could no longer lawfully be sold—an outcome that the FDA and Pfizer may be trying to avoid
because that would significantly reduce the COVID-19 vaccine supply and worsen the public
health. See 21 U.S.C. § 360bbb-3(c)(3) (EUA authorization “only if … there is no adequate,
approved, and available alternative to the product for diagnosing, preventing, or treating such
disease or condition … .”).11
II.
PLAINTIFF WILL SUFFER IRREPARABLE HARM IF THE COURT DOES NOT GRANT HER
MOTION FOR A PRELIMINARY INJUNCTION
In its TRO decision, this Court appeared to consider Plaintiff’s claimed irreparable harm
in the context of a wrongful-termination case. See Norris v. Stanley, 2021 WL 3891615 (W.D.
Michigan 2021) (order denying preliminary injunction). But, with all due respect, this is not such
a case. Rather, it is a constitutional case. As Plaintiff explained in her primary brief, being coerced
into surrendering constitutional rights constitutes an irreparable harm, as the governing case law
clearly establishes. (See Plaintiff’s Br. at 32). See also Overstreet v. Lexington-Fayette Urban
County Gov’t, 305 F.3d 566, 578 (6th Cir. 2002) (“[A] plaintiff can demonstrate that a denial of a
preliminary injunction will cause irreparable harm if the claim is based upon a violation of the
plaintiff’s constitutional rights.”); Hartman v. Acton, __F. Supp. 3d ___, 2020 WL 1932896, *4
(S.D. Ohio Apr. 21, 2020) (“Furthermore, where irreparable harm is based upon a violation of a

11 See also FDA, Emergency Use Authorization for Vaccines Explained, available at
https://www.fda.gov/vaccines-blood-biologics/vaccines/emergency-use-authorization-vaccines-
explained (last visited Sept. 15, 2021) (“Under an EUA, FDA may allow the use of unapproved
medical products, or unapproved uses of approved medical products in an emergency to diagnose,
treat, or prevent serious or life-threatening diseases or conditions when certain statutory criteria
have been met, including that there are no adequate, approved, and available alternatives.”)
(emphasis added).
Case 1:21-cv-00756-PLM-SJB ECF No. 21, PageID.717 Filed 09/20/21 Page 22 of 29

plaintiff’s constitutional rights, that violation, no matter how temporary, is sufficient to show
irreparable harm.”).
Even apart from that simple point that the existence of a constitutional claim, if colorable,
will ipso facto result in irreparable harm, there are two ways of looking at the injury in this case:
One possibility is that Plaintiff will, in actuality, be terminated, and her family deprived of
its main source of income and its chosen health insurance, while her stepdaughter (and eventually
her other stepchildren as they reach college age) will forfeit the tuition break Ms. Norris’s status
as an MSU employee brings. Even if this were a damages case (and it is not—Plaintiff class seeks
only prospective declaratory and injunctive relief), it is highly unlikely that the class could recover
both front and back pay and lost tuition reimbursement, to say nothing of the fact that while
litigation is going forward, the children of MSU employees currently attending MSU may have to
uproot their lives by transferring to less-expensive schools or suffering the harm and lost
opportunities associated with putting their college careers on hold.
The other possibility is that Plaintiff will come under such duress to receive the vaccine as
disciplinary proceedings progress that she will reluctantly agree to accept the vaccine, and as a
result will endure irreparable injury to her body. As Dr. Noorchashm attests, receiving the vaccine,
especially where a recipient employee possesses naturally acquired immunity, could result in
adverse consequences, including permanent ones (see Noorchashm Decl. ¶¶ 12, 19-27;
Noorchashm Reply ¶¶ 17-20; Joint Decl. ¶¶ 25-28). Not only is this the case because all medical
interventions entail some risk, but various studies have shown heightened risk of adverse events
in individuals who have recovered from COVID-19. Indeed, since Plaintiff initially filed her
complaint and preliminary injunction motion, a new study was published concluding that “the
preponderance of evidence suggests that a non-negligible subset of COVID-recovered Americans
Case 1:21-cv-00756-PLM-SJB ECF No. 21, PageID.718 Filed 09/20/21 Page 23 of 29

are, in fact, susceptible to adverse events following vaccination in excess of that which is
experienced by COVID-naïve persons.” (Noorchashm Reply ¶¶ 18-19). Dr. Noorchashm, who
has consulted with Plaintiff and reviewed her serological screening results (Noorchashm Decl. ¶
7), concluded that vaccination presents a “non-negligible risk of potentially irreversible harm to
Jeanna Norris” and that this risk is only medically ethical if she willingly accepts it, and if leaving
her unvaccinated would create a risk beyond that presented by individuals who are vaccinated but
do not have naturally acquired immunity (Noorchashm Decl. ¶ 20). Note too that Michigan law
exempts children (traditionally and generally the class of people subject to vaccine mandates) from
immunization requirements “for any period of time as to which a physical certifies that a specific
immunization is or may be determinantal to the child’s health or is not appropriate.” MCLA §
333.9215 (2021).
Assuming for the sake of argument that the chance is small, the fact that she could suffer
long-term, adverse consequences warrants granting a preliminary injunction here to temporarily
freeze the status quo until this litigation can be fully resolved on the merits. Defendants cannot
claim in good faith that there is no chance she will experience such an incident.
Under either of these scenarios, Plaintiff has established irreparable harm even if the nature
of the legal rights she is trying to vindicate are put to one side. Indeed, her injures are comparable
to those that this Court found constituted irreparable injury in a case brought by student athletes
against Western Michigan University. See Order Granting TRO in Dahl v. Board of Trustees of
Western Michigan University, No. 1:21-cv-757, slip op. at 1 (W. D. Mich. 2021) (“[P]layers will
not be able to participate in intercollegiate sports. WMU also states that the players will not lose
their scholarship for the academic year.”) And, of course, it would be legal error to ignore the
constitutional dimension of this case, since that alone is enough to warrant a finding of irreparable
Case 1:21-cv-00756-PLM-SJB ECF No. 21, PageID.719 Filed 09/20/21 Page 24 of 29

harm, a point this Court recognized in the Dahl litigation as well. See id. at 5-6 (“Having found a
likelihood of success on the merits of Plaintiff’s Free Exercise Claim, the balance of the factors
weighs in favor of emergency injunctive relief. Where parties seek injunctive relief and allege a
constitutional violation, the outcomes often turn on the likelihood of success on the merits, usually
making it unnecessary to dwell on the remaining three factors.”) (cleaned up). Plaintiff’s claim in
this case is every bit as constitutional as the Kahl claim.
III.
THE BALANCE OF EQUITIES WEIGHS IN FAVOR OF GRANTING PLAINTIFF’S MOTION
Defendants’ hyperbolic statement that its “interest and obligation in keeping its students,
faculty, and staff safe, alive, and healthy” outweighs the harm to one individual in receiving a
vaccination, seeking an exemption, or finding alternate employment entirely misses the mark.
Plaintiff presents no health risk to anyone whatsoever because she possesses naturally acquired
immunity to COVID-19, or at least no risk greater than that posed by vaccinated employees. She
also works remotely, and Defendants are wholly in charge of whether she is ordered back on
campus (see Declaration of Douglas Landis, attached to Opp. Br. as Ex. B at ¶¶ 7-10). While this
case works its way through the legal process, no harm will befall anyone if Plaintiff’s motion for
a preliminary injunction is granted. And there are larger questions at issue here: (a) Plaintiff will
move in due course for class certification; and (b) as the retention of the Faegre firm by MSU
indicates, this case is not only about Plaintiff, but implicates an issue of national significance:
whether individuals who can demonstrate naturally acquired immunity through antibody tests
should be exempt from vaccine mandates.
Plaintiff would have applied for a medical exemption, but MSU specifically states that it
does not recognize naturally acquired immunity among the bases for such an exemption. This
forced Plaintiff onto the path of litigation. Other universities and institutions are recognizing
Case 1:21-cv-00756-PLM-SJB ECF No. 21, PageID.720 Filed 09/20/21 Page 25 of 29

naturally acquired immunity in crafting their policies. And, both Drs. Gottlieb (formerly head of
the FDA) and Fauci of the National Institutes of Health have recently conceded that naturally
acquired immunity should be part of any vaccine-mandate policy.12 Just yesterday the CDC
appears to have embarked on the beginning of a journey toward recognizing the scientific fact of
naturally acquired immunity, as it tweeted that an individual who has had COVID-19 within the
past three months need not get tested after exposure to the virus. See CDC (@cdc.gov), Twitter
(Sept. 14, 2021), available at https://twitter.com/CDCgov/status/1437793535688908806?s=20.
* * *
During times of crisis, our constitutional and civil rights should not take a backseat. See
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020) (Gorsuch, J., concurring)
(“Even if the Constitution has taken a holiday during this pandemic, it cannot become a
sabbatical.”).
Usually, when the range of commentators reflect calmly, such scholars, judges, historians,
and even journalists look back agree that some measures, enacted with little forethought to fight
the latest crisis, did not make sense and, in fact, caused great unintended harm. In other words,
they eventually have to concede that rationality gave way in part to fear and panic. Plaintiff posits
that this is just such a scenario.
Ms. Norris and many others like her have naturally acquired immunity: not speculative or
ephemeral immunity, but demonstrable and lasting resistance, provable by objective scientific tests
that were not available when Jacobson was handed down. Thus, the pertinent scientific evidence

12 See Anderson Cooper interview with Sanjay Gupta and Anthony Fauci, CNN (Sept. 10, 2021),
available at https://dailycaller.com/2021/09/10/fauci-doesnt-answer-recovered-covid-required-
take-vaccine/ (last visited Sept. 12, 2021).

Case 1:21-cv-00756-PLM-SJB ECF No. 21, PageID.721 Filed 09/20/21 Page 26 of 29

demonstrates that she and others similarly situated present a heightened danger to no one. In light
of all of this, the preliminary injunction should be granted, for “even in a pandemic, the
Constitution cannot be put away and forgotten.” Roman Catholic Diocese of Brooklyn, 141 S. Ct.
at 68 (per curiam).

CONCLUSION

For the reasons set out above, the Court should enter a preliminary injunction against
Defendants’ Directive.

September 15, 2021
Respectfully submitted,

/s/ Jenin Younes
Jenin Younes
Litigation Counsel
Jenin.Younes@ncla.legal
Admitted in this Court
* Admitted only in New York. DC practice
limited to matters and proceedings before
United States courts and agencies.
Practicing under members of the District of
Columbia Bar.

/s/ Harriet Hageman
/s/ Harriet Hageman,* MSB #87482
Senior Litigation Counsel
Admitted in this Court
Harriet.Hageman@ncla.legal
* Admitted only in Wyoming, Colorado, and
Nebraska. Practice limited to matters and
proceedings before United States Courts and
agencies. Practicing under members of the
District of Columbia Bar.

/s/ John Vecchione
Case 1:21-cv-00756-PLM-SJB ECF No. 21, PageID.722 Filed 09/20/21 Page 27 of 29

John Vecchione
Senior Litigation Counsel
John.Vecchione@ncla.legal

Admitted in this Court

NEW CIVIL LIBERTIES ALLIANCE
1225 19th Street NW, Suite 450
Washington, DC 20036
Telephone: (202) 869-5210
Facsimile: (202) 869-5238

Attorneys for Plaintiffs
Case 1:21-cv-00756-PLM-SJB ECF No. 21, PageID.723 Filed 09/20/21 Page 28 of 29

CERTIFICATE OF COMPLIANCE
PURSUANT TO CIV. L. R. 7.2(a)&(b)

I hereby certify that this Brief contains 8,056 words, as produced by and counted by the
Microsoft Word Office 365 software.

____/s/ Jenin Younes
Case 1:21-cv-00756-PLM-SJB ECF No. 21, PageID.724 Filed 09/20/21 Page 29 of 29

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