MSU Reply in Support of Motion to Dismiss — Norris v. Stanley

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UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF MICHIGAN 
JEANNA NORRIS, KRAIG EHM,  
) 
and D’ANN ROHRER, 
) 
 
) 
 
Plaintiffs, 
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Case No. 1:21-cv-00756 
 
 
) 
vs. 
 
) 
 
 
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SAMUEL L. STANLEY, JR., 
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in his official capacity as President of 
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Michigan State University; DIANNE  
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BYRUM, In her official capacity as Chair  
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of the Board of Trustees, DAN KELLY,  
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in his official capacity as Vice Chair  
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of the Board of Trustees; and RENEE  
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JEFFERSON, PAT O’KEEFE, 
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BRIANNA T. SCOTT, KELLY TEBAY,  
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and REMA VASSAR in their official  
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capacities as Members of the Board of  
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Trustees of Michigan State University, 
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and JOHN and JANE DOES 1-10, 
) 
 
 
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Defendants. 
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DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS 
 
 
Plaintiffs’ chief arguments in opposition to dismissal of their Amended Complaint are 
that: 1) the level of scrutiny to be applied to MSU’s vaccination requirement is an “open 
question;” 2) MSU’s requirement does not survive even rational basis scrutiny; 3) MSU’s 
requirement creates an unconstitutional condition; and 4) MSU’s requirement is preempted by 
the Emergency Use Authorization statute. Each of these issues are questions of law that this 
Court has thoroughly evaluated and decided three times already. ECF Nos. 7, 42, 54. No factual 
allegations in the Amended Complaint, even taken as true, change the well-founded legal 
conclusions that this Court has reached on each of Plaintiffs’ claims. The Amended Complaint 
should be dismissed with prejudice. 
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I. 
Rational basis review applies to MSU’s vaccine requirement. 
No authority supports Plaintiffs’ suggestion that they have a fundamental right to refuse 
vaccination required as a condition of employment. Instead, they urge the Court to reject, or at 
least “limit” the clear holding of Jacobson v. Massachusetts, 197 U.S. 11 (1905)—essentially 
urging that its longevity as binding authority for the past 115 years is the very reason it should 
now be discarded. ECF No. 62, PageID.1387-89. Because no case so holds, Plaintiffs instead 
point to recent challenges to President Biden’s executive orders—none of which rejects or limits 
Jacobson.  
In fact, the opposite is true; each of the recent cases Plaintiffs cite relies on Jacobson for 
the proposition that it is within states’ powers to require vaccination. ECF No. 62, PageID.1389. 
For example, the Fifth Circuit decision in BST Holdings, which Louisiana v. Becerra relies upon 
as well, noted that “to mandate that a person receive a vaccine . . . falls squarely within the 
States’ police power” under Jacobson. BST Holdings, LLC v. OSHA, 17 F.4th 604, 617 (5th Cir. 
2021) (enjoining OSHA rule); Louisiana v. Becerra, No. 3:21-CV-03970, 2021 WL 5609846, at 
*15 (W.D. La. Nov. 30, 2021) (enjoining CMS rule). The Sixth Circuit’s rejection of the Fifth 
Circuit’s BST Holdings decision on other grounds did not disturb this characterization of 
Jacobson. In re MCP No. 165, No. 21-7000, 2021 WL 5989357, at *17 (6th Cir. Dec. 17, 2021); 
Missouri v. Biden, No. 4:21-cv-1329, 2021 WL 5564501, at *10 (E.D. Mo. Nov. 29, 2021) 
(“forcing the administration of a specific vaccine, into the otherwise unwilling . . . has long been 
the province of the states”). More fundamentally, these cases are not Jacobson cases, they are 
challenges to federal executive branch authority based on separation of powers principles. They 
simply have very little relevance to evaluating the propriety of MSU’s vaccine requirement and 
certainly offer no basis for the Court to find Jacobson inapplicable here.   
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MSU does not contend that “all vaccine mandates are always legal,” and upholding 
MSU’s mandate does not require the Court to find as much. ECF No. 62, PageID.1388. Instead, 
as this Court has confirmed three times, Jacobson allows for vaccination requirements that are 
“reasonably required for the safety of the public”— in other words, that pass rational basis 
scrutiny. Id. (quoting Jacobson, 197 U.S. at 28); see also, e.g., Roman Catholic Diocese of 
Brooklyn v. Cuomo, 141 S. Ct. 63, 70 (2020) (Gorsuch, J., concurring) (observing that “Jacobson 
didn’t seek to depart from normal legal rules,” but instead “applied what would become the 
traditional legal test associated with the right at issue”—the “[r]ational basis review . . . test th[e] 
Court normally applies to Fourteenth Amendment challenges, so long as they do not involve 
suspect classifications based on race or some other ground, or a claim of fundamental right”—
i.e. “exactly what the Court does today”). MSU’s requirement meets this standard. See ECF 
No. 42, Page.ID. 822-23.  
II. 
MSU’s vaccine requirement satisfies rational basis review. 
In substance, Plaintiffs’ arguments that the vaccine requirement does not satisfy rational 
basis review are disagreements with vaccine mandates as a matter of public policy. ECF No. 62, 
PageID.1389-1397. But Plaintiffs are wrong when they claim that there is no “scientific 
evidence” supporting the efficacy of COVID-19 vaccination, and they cannot survive a motion to 
dismiss simply by ignoring it.1 Compare id. at PageID.1391, with ECF No. 60, PageID.1349-
1354. 
Plaintiffs again lean heavily on two interim decisions rejecting federal CMS vaccination 
requirements to urge the Court to do the same here. ECF No. 62, Page.ID.1392-93. Those cases, 
 
1 Plaintiffs’ hypothetical exercise and vegetable mandates are nonsensical as neither relate to 
control of an airborne and highly contagious virus. ECF No. 62, PageID.1390.  
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which Plaintiffs cite for policy considerations relevant only in the healthcare context (rather than 
legal principles) are challenges to federal rulemaking under the Administrative Procedures Act—
not substantive due process challenges. Id. (citing Louisiana, 2021 WL 5609846, and Missouri, 
2021 WL 5564501). Jacobson, which is a substantive due process case, recognized that, like the 
COVID-19 vaccine, the smallpox vaccine could prevent the spread of that virus. Id. at 1391 
(quoting Jacobson, 197 U.S. at 32); see also, e.g., Key Things to Know About COVID-19 
Vaccines, available at: https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/keythingstoknow.html (updated Nov. 30, 2021) (“COVID-19 vaccines can reduce 
the risk of people spreading the virus that causes COVID-19.”). But Jacobson did not, as 
Plaintiffs now suggest, hold that the fact that vaccines also provide individual protection from 
severe infection somehow undermines the reasonableness of requiring them. ECF No. 62, 
Page.ID.1391. 
The only “factual” dispute Plaintiffs point to is the impact of so-called natural immunity 
on the reasonableness of MSU’s requirement.2 Id. at PageID.1393-96. The construction of this 
issue most favorable to Plaintiffs for purposes of this motion to dismiss is that “naturally 
acquired immunity is equally or more protective to that achieved through vaccination.” Id. at 
PageID.1393.3 Taking this allegation as true still does not render MSU’s policy irrational as a 
matter of law.  
 
2 Plaintiffs’ invocation of Daubert is misplaced and unavailing. Hypothetical “facts” about 
natural immunity that “if proven” would undermine MSU’s rational basis are not the same as 
actual facts. Id. 
 
3 In support of this argument, Plaintiffs submit evidence outside the pleadings that cannot 
properly be considered on a motion to dismiss. ECF No. 62-1. Excel Homes, Inc. v. Locricchio, 7 
F. Supp. 3d 706, 710 (E.D. Mich. Mar. 2014) (excluding exhibits attached to opposition to 
motion to dismiss). That said, this document is also meaningless as it simply reflects that the 
CDC does not collect the type of information requested. Compare ECF No. 62-1 (“this 
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Plaintiffs’ focus on transmissibility does not speak to other considerations that rationally 
support MSU’s policy, for example that vaccination reduces the length of time in which an 
individual infected with COVID-19 may be capable of shedding the virus to others, lessens the 
severity of any symptoms they might experience, or will further reduce the risk of reinfection, 
for example. ECF No. 62, Page.ID.1393, 1395-1396; see, e.g., Vaccine reduces transmission in 
breakthrough cases (pub. Dec. 1, 2021), available at: https://news.harvard.edu/gazette/story/2021 
/12 /vaccinated-who-get- breakthrough-infections-less-contagious/ (explaining that vaccinated 
individuals with breakthrough infections “shed [COVID-19 virus] for a shorter period than 
[infected] unvaccinated people”); Science Brief: SARS-CoV-2 Infection-induced and Vaccine-
induced Immunity (updated Oct. 29, 2021), available at: https://www.cdc.gov/coronavirus/2019-
ncov/science/science-briefs/vaccine-induced-immunity.html (“Substantial immunologic evidence 
and a growing body of epidemiologic evidence indicate that vaccination after infection 
significantly enhances protection and further reduces risk of reinfection[.]”). 
The standard applicable to MSU’s requirement is whether it is reasonably related to 
legitimate government interests. ECF No. 60, PageID.1356-58. Rational basis review is 
extremely deferential; MSU’s policy is “accorded a strong presumption of validity and must be 
upheld so long as there is “any plausible justification offered . . . or even hypothesized by the 
court,” including “rational speculation” without “a foundation in the record.” ARJN #3 v. 
Cooper, 517 F. Supp. 3d 732, 745 (M.D. Tenn. 2021). MSU’s requirement is supported by all 
relevant public health authorities and consistent with cases upholding similar requirements. ECF 
No. 60, Page.ID.1351-1354; ECF No. 42, PageID. 823, 825-826. Plaintiffs cannot refute this.  
 
information is not collected”) with ECF No. 62, PageID.1382 (mischaracterizing letter as CDC’s 
“inability to document” requested data). 
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What they seem to be arguing instead is that the Court should permit this litigation to 
continue based on the possibility that scientific hypotheticals they posit today will become reality 
tomorrow and will render MSU’s requirement unjustified. But Plaintiffs initiated this suit against 
MSU months ago based on their claim that MSU’s policy was unconstitutional at that time. 
Federal law does not permit parties to sue now in hopes that their claims will develop later, and 
this Court should not either. See, e.g., Bay Mills Indian Cmty. v. Whitmer, 794 F. App’x 485, 486 
(6th Cir. 2019) (instructing that courts may not render “advisory opinion[s] describing what the 
law would be based on hypothetical facts” (quotation omitted)). Of course, MSU has and will 
continue to follow the relevant health authority guidance with regard its vaccine directive, so 
comparing today’s policy based on today’s guidance against tomorrow’s hypothetical facts is 
pointless.  In any event, the only question that will ever control the rational basis challenge in 
this case is whether MSU’s requirement was reasonably related to legitimate government 
interests on November 5, 2021—the date of the Amended Complaint. ECF No. 55. As a matter 
of law, MSU’s policy is and was supported by far more than the requisite “plausible 
justification,” so Plaintiffs’ challenge must be dismissed. See also Harris v. Univ. of Mass., 
Lowell, No. 21-CV-11244-DJC, 2021 WL 3848012, at *6 (D. Mass. Aug. 27, 2021) (dismissing 
substantive due process challenge to university’s COVID-19 vaccination requirement finding 
that the policy was “based . . . upon both medical and scientific evidence and research and 
guidance, and thus is at least rationally related to these legitimate interests” (citation omitted)). 
III. 
MSU’s vaccine requirement does not constitute an unconstitutional condition. 
Plaintiffs insist that MSU’s arguments opposing their unconstitutional condition theory—
the same arguments already considered and credited by this Court—are a “misunderstanding or 
misportrayal” of the doctrine. ECF No. 1397, Page.ID.1397; ECF No. 42, Page.ID.824. They 
point to Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974), as a basis to excuse their 
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obligation to identify an enumerated right in order to claim an unconstitutional condition. ECF 
No. 1397, Page.ID.1397. But that case characterized the “right of interstate travel” as a “basic 
constitutional freedom,” Memorial Hospital, 415 U.S. at 254-55, and Plaintiffs have no similar 
constitutional freedom—enumerated or otherwise—to decline vaccinations required as a 
condition of employment. 
Moreover, there is no coercion as a matter of law. Unlike the ailing interstate travelers 
denied healthcare in Memorial Hospital, Plaintiffs have other options. Ehm and Rohrer could 
have gotten vaccinated and maintained their employment with MSU or simply chosen to work 
elsewhere. Without a constitutional right at stake, this choice is not coercive. Cases disagreeing 
with this Court and the Sixth Circuit’s conclusion that loss of employment is not irreparable for 
purposes of enjoining other vaccination requirements simply do not bear on the unconstitutional 
conditions analysis. Compare ECF No. 62, PageID.1400 (citing cases) with ECF No. 42, 
Page.ID.816.     
IV. 
MSU’s Vaccine Requirement is not preempted by federal law. 
Plaintiffs concede that the EUA Statute (21 U.S.C. § 360bbb-3) does not provide for a 
private cause of action and they cite no case finding otherwise. ECF No. 62, PageID.1401. This 
statute requires healthcare providers administering EUA-approved vaccinations to obtain 
informed consent from the patients to whom the vaccinations are administered. 21 U.S.C. 
§ 360bbb-3. MSU agrees that the right of informed consent required by the statute belongs to 
Plaintiffs (as they note), but that is of no moment because “MSU’s policy does not preclude 
Plaintiff[s] from receiving informed consent, nor does it prevent [them] from accepting or 
refusing administration of the vaccine.” ECF No. 42; Page.ID.825 n.2.  
Without a legal basis for a preemption claim, Plaintiffs instead resort to insisting that the 
issue of “whether employers may mandate EUA vaccines” is “unsettled” and that public policy 
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weighs against employer vaccination requirements generally. ECF No. 62, Page.ID.1403. 
Neither of these arguments establishes preemption, and Plaintiffs cite no authority for their 
audacious claim that “given the lack of precedent, as the question has never been addressed by 
courts higher than the district level, it cannot be decided at the motion to dismiss stage where all 
factual inferences are to be made in Plaintiffs’ favor.” Id. There are simply no “factual 
inferences” that can salvage Plaintiffs’ preemption claim. The EUA statute requires informed 
consent to be obtained by healthcare providers, and this Court has already held that MSU’s 
policy does nothing to undermine that requirement. ECF No. 42; Page.ID.825 n.2. 
Plaintiffs’ lengthy diversion into the interchangeability (or lack thereof) between the 
EUA- authorized and FDA-approved Pfizer vaccines is an effort to create a factual dispute on an 
issue that is irrelevant. ECF No. 62, PageID. 1378-1380, 1403-1406. Construing Plaintiffs’ 
allegations in their favor for purposes of the motion to dismiss, Pfizer’s BioNTech and 
Comirnaty are distinct and no fully-FDA approved vaccine is widely available. ECF No. 55, 
PageID.1240-1243.4 Those facts have no bearing on whether, as a matter of law, the EUA 
statute, which does not apply to MSU and is not violated by its vaccine requirement, nonetheless 
preempts that requirement. It does not.   
 
4 It is worth noting that as a factual matter, Plaintiffs’ own authority casts doubt on the accuracy 
of these allegations. For example, Plaintiffs contend that the court in Doe v. Austin recognized 
that differences in inactive ingredients “can translate into a difference in safety and efficacy.” 
ECF No. 62, PageID.1379. However, the opinion actually concludes that the plaintiffs “haven’t 
shown a ‘reasonable possibility’ that excluding [one inactive ingredient] from a vial of the EUA 
vaccine makes it any ‘less safe and effective’ than [FDA-approved] Comirnaty,” so the court 
“d[id] not discount the FDA’s conclusion that the two vaccines are medically interchangeable.” 
Doe #1-#14 v. Austin, No. 3:21-cv-1211, 2021 WL 5816632, at * 3 n.5 (N.D. Fla. Nov. 12, 
2021). 
 
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V. 
Norris should be dismissed for lack of standing. 
 
Finally, even if the Court determines that any of Plaintiff Ehm or Rohrer’s claims survive 
this motion, Plaintiff Jenna Norris should be dismissed for lack of standing. She recently sought 
a religious exemption from MSU’s vaccine requirement, which she had not done at the time she 
filed her suit or litigated the preliminary injunction, and that request was granted on November 
19, 2021.5 See Plaintiff-Appellants’ Motion to Dismiss Without Prejudice (attached hereto as 
Exhibit A).6 Accordingly, Plaintiff Norris is subject to no injury sufficient to confer Article III 
standing. Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855, 861 (6th Cir. 2020) (To establish 
standing, Norris “must have (1) suffered an injury in fact, (2) that is fairly traceable to the 
challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial 
decision.”). “A federal court may not “adjudicate challenges to state measures absent a showing 
of actual impact on the challenger.” Dubuc v. Parker, 168 Fed. Appx. 683, 687 (6th Cir. 2006) 
(quoting Arizonans for Official English v. Ariz., 520 U.S. 43, 64 (1997)) (finding an attorney 
lacked standing to pursue a challenge seeking admission to the Michigan bar when he was 
subsequently admitted to the bar).  
 
At this point, Plaintiff Norris stands to suffer no concrete harm from MSU’s requirement. 
She is exempt and need not receive a COVID-19 vaccination as a condition of her employment. 
She has no injury that this Court can redress and is therefore no longer a proper plaintiff in this 
lawsuit. 
 
5 Although Norris’s exemption was granted the same day that MSU filed its motion to dismiss, 
counsel was unaware of the exemption at the time of filing.  
 
6 The district court has “wide discretion” to consider matters outside of the pleadings, including 
this public filing, which is also subject to judicial notice, in resolving jurisdictional issues. Prop. 
Mgmt. Connection, LLC v. Consumer Fin. Prot. Bureau, No. 3:21-CV-00359, 2021 WL 
5282075, at *4 (M.D. Tenn. Nov. 10, 2021). 
 
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VI. 
Conclusion 
Construing all of Plaintiffs’ allegations as true and drawing all reasonable inferences in 
their favor does not transform their Amended Complaint into one that states any claim on which 
relief can be granted. Because Plaintiffs have no right to amend and any further amendment 
would be futile, Plaintiffs’ Amended Complaint should be dismissed with prejudice.  
 
Date:   January 3, 2022 
 
 
FAEGRE DRINKER BIDDLE & REATH LLP 
/s/ Anne K. Ricchiuto 
 
Anne K. Ricchiuto (#25760-49) 
Stephanie L. Gutwein (#31234-49) 
300 North Meridian Street, Suite 2500 
Indianapolis, IN 46204 
Telephone: 317-237-0300 
Fax: 317-237-1000 
anne.ricchiuto@faegredrinker.com 
stephanie.gutwein@faegredrinker.com 
Uriel Abt 
Michigan State University 
Office of the General Counsel 
426 Auditorium Rd., Rm 494 
East Lansing, MI 48824-2600 
Telephone: 517-353-3530 
Fax: 517-432-3950 
abturiel@msu.edu 
Attorneys for Defendants 
 
 
 
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CERTIFICATE OF COMPLIANCE 
As required by LCivR 7.2(b)(ii), I certify that this document complies with the word limit 
contained within LCivR 7.2(b)(i) because, excluding the parts of the document exempted by that 
rule, this document contains 2,696 words, according to the word count function of Microsoft 
Word for Office 365. 
Date:   January 3, 2022 
 
/s/ Anne K. Ricchiuto 
 
Anne K. Ricchiuto  
 
 
 
CERTIFICATE OF SERVICE 
I hereby certify that on January 3, 2022, a copy of the foregoing was filed electronically. 
Service of this filing will be made on all ECF-registered counsel of record by operation of the 
Court’s electronic filing system. Parties may access this filing through the Court’s system. 
Harriet Hageman 
Jenin Younes 
John Vecchione 
New Civil Liberties Alliance 
1225 19th Street NW, Suite 450 
Washington, DC 20036 
/s/ Anne K. Ricchiuto 
 
 
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