Opinion Granting MTD in Part — Norris v. Stanley (W.D. Mich.)

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UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF MICHIGAN 
SOUTHERN DIVISION 
 
JEANNA NORRIS, et al., 
 
 
 
) 
 
 
 
Plaintiffs, 
 
 
) 
 
 
 
 
 
 
 
) 
No. 1:21-cv-756 
-v- 
 
 
 
 
 
 
) 
 
 
 
 
 
 
 
) 
Honorable Paul L. Maloney 
SAMUEL L. STANLEY, JR., et al., 
 
 
) 
 
 
 
Defendants.  
 
) 
 
 
 
 
 
 
 
) 
 
OPINION AND ORDER GRANTING IN PART AND RESERVING IN PART 
DEFENDANTS’ MOTION TO DISMISS 
 
Pending before the Court is Defendants’ motion to dismiss Plaintiffs’ first amended 
complaint (ECF No. 59) pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, the 
Court will grant the motion as to Counts II and III and reserve on the motion as to Count I. 
Upon further argument, the Court will issue a subsequent order regarding Count I. 
I. Facts 
In light of the coronavirus pandemic, colleges and universities around the country 
have implemented COVID-19 vaccine mandates for their staff and students. Michigan State 
University (MSU), the employer/former employer of the Plaintiffs in this matter, has 
followed this trend. MSU established its COVID-19 vaccine policy in the fall of 2021. The 
university’s president, Dr. Samuel Stanley, Jr., announced the policy on July 30, 2021 (see 
ECF No. 55-1 at PageID.1327). It requires all faculty, staff, and students to be fully vaccinated 
against COVID-19 or have an approved religious or medical exemption (see ECF No. 60 at 
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PageID.1355).
1 When MSU originally announced the policy, faculty, staff, and students were 
required to have received at least one dose of the COVID-19 vaccine by August 31, 2021, 
or they could be subject to disciplinary action such as termination or suspension (ECF No. 
55-1 at PageID.1330). MSU has continued this policy into the Spring 2022 semester. 
The Plaintiffs in this matter are three employees/former employees of MSU. They 
all argue that they should be exempt from MSU’s vaccine policy because they have acquired 
“natural immunity” from COVID-19 due to their previous COVID infections. Plaintiff 
Jeanna Norris is a supervisory Administrative Associate and Fiscal Officer who contracted 
and recovered from COVID in November 2020 (ECF No. 55 at PageID.1211, ¶¶ 72, 77). 
Since commencing this action, Plaintiff Norris has received a religious exemption from the 
MSU vaccine policy, meaning she is no longer required to receive the COVID-19 vaccine to 
continue her employment at MSU (ECF No. 62 at PageID.1384). Plaintiff Kraig Ehm is a 
former video producer who contracted COVID-19 in April 2021 (ECF No. 55 at 
PageID.1212, ¶¶ 82-83). After failing to comply with MSU’s vaccine policy, Plaintiff Ehm 
was terminated from his position on November 3, 2021 (Id. at PageID.1212, ¶ 84). Plaintiff 
D’Ann Rohrer is an Extension Educator who was diagnosed with COVID-19 in August 2021 
(Id. at PageID.1212-13, ¶¶ 85-86). Because she has refused to receive the COVID-19 
vaccine, Plaintiff Rohrer has been placed on unpaid leave (Id. at PageID.1213, ¶ 87). 
Plaintiffs brought this lawsuit seeking injunctive relief, declaratory relief, and nominal 
damages. They argue that the MSU vaccine policy violates their substantive due process 
 
1 See COVID Directives, Mich. St. U., https://msu.edu/together-we-will/directives.html (last updated Jan. 7, 2022) for 
the full policy. 
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rights to liberty and privacy by infringing on their bodily autonomy and right to refuse 
unwanted medical treatment; that the MSU vaccine policy creates an unconstitutional 
condition, which in turn creates a procedural due process violation; and that the MSU 
vaccine policy violates the Supremacy Clause because the vaccine policy conflicts with the 
federal Emergency Use Authorization (EUA) statute (see generally ECF No. 55). Plaintiffs 
have already asked this Court for a temporary restraining order and preliminary injunction 
enjoining the MSU vaccine policy. The Court denied both requests (ECF Nos. 7, 42). 
Defendants now seek to dismiss the first amended complaint in its entirety pursuant to Fed. 
R. Civ. P. 12(b)(6).  
II. Legal Standard 
A complaint must contain a short and plain statement of the claim showing how the 
pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The complaint need not contain detailed 
factual allegations, but it must include more than labels, conclusions, and formulaic 
recitations of the elements of a cause of action. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 
555 (2007). A defendant bringing a motion to dismiss for failure to state a claim under Rule 
12(b)(6) tests whether a cognizable claim has been pled in the complaint. Scheid v. Fanny 
Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988).  
To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must provide 
sufficient factual allegations that, if accepted as true, are sufficient to raise a right to relief 
above the speculative level, Twombly, 550 U.S. at 555, and the “claim to relief must be 
plausible on its face.” Id. at 570. “A claim is plausible on its face if the ‘plaintiff pleads factual 
content that allows the court to draw the reasonable inference that the defendant is liable for 
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the misconduct alleged.’” Ctr. For Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 
369 (6th Cir. 2011) (quoting Twombly, 550 U.S. at 556). “The plausibility standard is not 
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a 
defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation 
omitted). If plaintiffs do not “nudge[] their claims across the line from conceivable to 
plausible, their complaint must be dismissed.” Twombly, 550 U.S. at 570.  
When considering a motion to dismiss, a court must accept as true all factual 
allegations, but need not accept any legal conclusions. Ctr. For Bio-Ethical Reform, 648 F.3d 
at 369. The Sixth Circuit has noted that courts “may no longer accept conclusory legal 
allegations that do not include specific facts necessary to establish the cause of action.” New 
Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1050 (6th Cir. 2011). 
However, “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed 
factual allegations”; rather, “it must assert sufficient facts to provide the defendant with ‘fair 
notice of what the . . . claim is and the grounds upon which it rests.’” Rhodes v. R&L Carriers, 
Inc., 491 F. App’x 579, 582 (6th Cir. 2012) (quoting Twombly, 550 U.S. at 555).  
III. Analysis 
A. Count I – Substantive Due Process 
As this Court stated in its order denying Plaintiff Norris’s
2 motion for a preliminary 
injunction, the likelihood of success on the merits in this lawsuit “hinges in significant 
measure on the standard of review that this Court must apply given existing appellate 
 
2 At the beginning stages of this litigation, Plaintiff Norris was the only plaintiff in the matter. Plaintiff Ehm Rohrer were 
later added pursuant to the first amended complaint (ECF No. 55) after the Court had denied Plaintiff Norris’s requests 
for a temporary restraining order and preliminary injunction. 
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authority” (ECF No. 42 at PageID.821). In this matter, the Court has twice held that rational 
basis scrutiny applies because the MSU vaccine policy does not implicate any fundamental 
right under the Constitution (see ECF Nos. 7, 42); Midkiff v. Adams Cty. Reg’l Water Dist., 
409 F.3d 758, 770 (6th Cir. 2005) (“If a protected class or fundamental right is involved, [the 
court] must apply strict scrutiny, but where no suspect class or fundamental right is 
implicated, [the court] must apply rational basis review.”).  
Although Plaintiffs still zealously assert that strict scrutiny applies, the Court is not 
persuaded. Plaintiffs urge the Court to distinguish the present matter from Jacobson v. 
Massachusetts, 197 U.S. 11 (1905), the landmark case regarding a smallpox vaccine mandate 
that has since then provided the basis for many other vaccine mandates. Yet, courts in 
numerous jurisdictions have applied Jacobson to the present-day COVID-19 vaccine 
mandates, and they have found that Jacobson requires a rational basis standard of review for 
such cases. See, e.g., Klaassen v. Trs. of Ind. Univ., 7 F.4th 592, 593 (7th Cir. 2021) 
(“Plaintiffs assert that the rational-basis standard used in Jacobson does not offer enough 
protection for their interests and that courts should not be as deferential to the decisions of 
public bodies as Jacobson was, but a court of appeals must apply the law established by the 
Supreme Court.”); Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 70 (2020) 
(Gorsuch, J., concurring) (stating that Jacobson “essentially applied a rational basis review”); 
Bauer v. Summey, __ F. Supp. 3d __, 2021 WL 4900922, at *10 (D.S.C. 2021) (“Since 
Jacobson, federal courts have consistently held that vaccine mandates do not implicate a 
fundamental right and, accordingly, applied rational basis review in determining the 
constitutionality of such mandates.”) (collecting cases).  
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Based on the binding Jacobson precedent and consistent case law regarding COVID-
19 vaccine mandates, the Court again holds that rational basis scrutiny applies to this matter, 
which involves a generally applicable vaccine mandate that does not implicate fundamental 
rights protected under the Constitution.  
However, in evaluating Plaintiff Norris’s requests for a temporary restraining order 
and preliminary injunction, although the Court found that Plaintiff Norris was unlikely to 
succeed on the merits of her substantive due process claim after applying rational basis 
review, the Court is not inclined to dismiss this claim on a motion to dismiss. Plaintiffs’ 
substantive due process claim asserts that MSU’s vaccine policy violates Plaintiffs’ liberty 
interests by forcing them to forgo their rights to bodily autonomy and to decline medical 
treatment. Because there is robust debate surrounding the efficacy of natural immunity 
versus vaccine immunity, the Court would prefer to hear further argument on whether 
MSU’s vaccine policy does or does not survive rational basis review for failing to include an 
exemption for people who have acquired “natural immunity” to COVID from a previous 
infection. The Court will decide whether Count I survives Defendants’ motion to dismiss 
subsequent to additional oral argument before this Court. 
B. Count II – Unconstitutional Conditions & Procedural Due Process 
Plaintiffs also assert that the MSU vaccine policy violates the unconstitutional 
conditions doctrine because it coerces Plaintiffs into waiving a constitutional right (see ECF 
No. 55 at PageID.1229-34). Although Plaintiffs argue that they need not allege a violation of 
an enumerated right—that is, they argue that a violation of any constitutional right is sufficient 
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to assert an unconstitutional conditions claim—the Court still finds this argument 
unpersuasive. Consequently, it cannot survive Defendants’ motion to dismiss.  
“Under the unconstitutional conditions doctrine, the government may not deny a 
benefit to a person on a basis that infringes a constitutionally protected right, even if the 
person has no entitlement to that benefit.” Thompson v. City of Oakwood, 307 F. Supp. 3d 
761, 778 (S.D. Ohio 2018) (citing Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 
U.S. 47, 59 (2006)). This doctrine “vindicates the Constitution’s enumerated rights by 
preventing the government from coercing people into giving them up.” Koontz v. St. Johns 
River Water Mgmt. Dist., 570 U.S. 595, 604 (2013). For example, a California rule that 
required anyone who sought to take advantage of a property tax exemption to sign a 
declaration stating that he or she would not advocate for the forcible overthrow of the federal 
government was a violation of the unconstitutional conditions doctrine. See Speiser v. 
Randall, 357 U.S. 513 (1958). Forcing individuals to waive their right to freedom of speech 
in this scenario to receive a tax exemption was a clear unconstitutional condition. See id. at 
518. And although this doctrine is typically associated with enumerated rights, it may apply 
to coercion by the government involving any constitutional right. See Memorial Hosp. v. 
Maricopa Cty., 415 U.S. 250 (1974) (holding that an Arizona statute that required an 
individual to reside in a county for at least one year as a condition for receiving nonemergency 
hospitalization or medical care at the county’s expense was an unconstitutional condition that 
impeded on the right to interstate travel). 
While the parties dispute whether this doctrine only applies to enumerated rights or 
whether it applies to any constitutional right, this dispute is immaterial. Based on Maricopa 
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County, the Court finds that the unconstitutional conditions doctrine can indeed apply to 
governmental coercion encouraging the waiver of a non-enumerated right. However, what 
the parties have failed to observe is that there is no governmental benefit at issue in the 
present matter. See Thompson, 307 F. Supp. 3d at 778 (“Under the unconstitutional 
conditions doctrine, the government may not deny a benefit to a person on a basis that 
infringes a constitutionally protected right, even if the person has no entitlement to that 
benefit.”) (emphasis added). The MSU vaccine policy does not coerce Plaintiffs into waiving 
their constitutional rights to bodily autonomy and to decline medical treatment in order to 
receive a governmental benefit such as a tax exemption, medical treatment, or some sort of 
governmental funding. Instead, the “benefit” at issue here is Plaintiffs’ employment at MSU, 
to which they are not constitutionally entitled (see ECF No. 7 at PageID.348) (“[D]ue to 
[Plaintiff Norris’s] at-will employment status, she does not have a constitutionally protected 
property interest in her employment position.”). Because of the lack of a governmental 
benefit at issue in this matter, the Court finds that Plaintiffs have failed to plead sufficient 
facts to allege a violation of the unconstitutional conditions doctrine to survive Defendants’ 
motion to dismiss. 
Also under Count II, Plaintiffs vaguely assert a violation of their procedural due 
process rights (see ECF No. 55 at PageID.1231-32, ¶¶ 166-71). Plaintiffs argue that there is 
a “concurrent” procedural due process violation along with an unconstitutional condition 
because MSU’s vaccine policy “flip[s] the burden of proof and require[s] Plaintiffs . . . to 
prove that it is safe for them to perform their respective jobs while unvaccinated” (Id. at 
PageID.1232, ¶ 171). 
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“In order to establish a procedural due process claim, a plaintiff must show that (1) 
he had a life, liberty, or property interest protected by the Due Process Clause; (2) he was 
deprived of this protected interest; and (3) the state did not afford him adequate procedural 
rights prior to depriving him of the property interest.” Women’s Med. Prof’l Corp. v. Baird, 
438 F.3d 595, 611 (6th Cir. 2006). Defendants argue that Plaintiffs’ procedural due process 
claim must be dismissed because Plaintiffs have failed to state a prima facie case for such a 
claim (ECF No. 60 at PageID.1363). Defendants assert that Plaintiffs have failed to show that 
a life, liberty, or property interest is at issue. Although Plaintiffs plead that they “possess a 
liberty interest in their bodily integrity, a property interest in their careers, and a statutory 
interest in informed consent” (ECF No. 55 at PageID.1229, ¶ 160), Defendants argue that 
these are legal conclusions that need not be accepted as true on a motion to dismiss. 
Plaintiffs’ procedural due process argument fails for numerous reasons. First, 
Plaintiffs failed to respond to this argument in their response to Defendants’ motion to 
dismiss. “Where a party fails to respond to an argument in a motion to dismiss ‘the Court 
assumes he concedes this point and abandons the claim.’” ARJN #3 v. Cooper, 517 F. Supp. 
3d 732, 750 (M.D. Tenn. 2021) (citing Doe v. Bredesen, 507 F.3d 998, 1007-08 (6th Cir. 
2007)). Therefore, by failing to respond to Defendants’ arguments regarding Plaintiffs’ 
procedural due process claim, Plaintiffs have effectively abandoned this claim, and the Court 
will grant Defendants’ motion to dismiss as to this claim. 
Second, even if the Court evaluated the merits of Plaintiffs’ procedural due process 
claim, it would still fail to survive Defendants’ motion to dismiss. Plaintiffs cannot establish 
that the MSU vaccine policy forces them to forgo any constitutional right. And even if the 
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Court found that the vaccine policy deprives Plaintiffs of their liberty interest in their bodily 
autonomy, they cannot show that they were deprived of adequate process.
3 Where a generally 
applicable state rule applies to a large number of individuals, the Due Process Clause does 
not require that each person have an opportunity to be heard regarding the rule’s adoption. 
See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915) (“When a 
rule of conduct applies to more than a few people, it is impracticable that everyone should 
have a direct voice in its adoption.”). Not only have Plaintiffs failed to allege exactly what 
“process” they have been denied, but they are likely not entitled to the type of process—i.e., 
a hearing—that they prefer.  
Because Plaintiffs’ have effectively abandoned their procedural due process violation 
claim and because they have failed to allege sufficient facts to support such a claim, the Court 
will grant Defendants’ motion to dismiss this claim. 
C. Count III – Supremacy Clause 
Third, Defendants move to dismiss Count III of the first amended complaint. 
Plaintiffs argue that the federal EUA statute, 21 U.S.C. § 360bbb-3, mandates voluntary and 
informed consent because it requires individuals receiving an EUA-authorized vaccine to 
have the “option to accept or refuse administration of the product.” See id. § 360bbb-
3(e)(1)(A)(ii)(III). Plaintiffs further argue that the MSU vaccine policy “actually conflicts” with 
 
3 Plaintiffs also assert that they have a property interest in their careers. The Court has held multiple times that Plaintiffs 
possess no such constitutional interest in their employment at MSU (see ECF No. 7 at PageID.347; ECF No. 42 at 
PageID.822-23). Plaintiffs also assert that they have a “statutory interest” in informed consent. In the following section, 
the Court will explain why MSU’s vaccine policy does not violate the EUA statute’s informed consent requirement. 
Thus, neither of these alleged “interests” provide the requisite constitutional protection that a meritorious procedural 
due process claim requires. These interests will not help Plaintiffs’ procedural due process claim survive Defendants’ 
motion to dismiss. 
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the EUA statute because it does not give employees the option to refuse administration of 
the COVID-19 vaccine, which they argue leads to the conclusion that the policy is preempted 
pursuant to the Supremacy Clause (ECF No. 55 at PageID.1235).  
The Court has already rejected the merits of this argument (see ECF No. 42 at 
PageID.825, n.2). The MSU vaccine policy does not preclude Plaintiffs from receiving 
informed consent regarding the COVID-19 vaccine, nor does it preclude Plaintiffs from 
refusing the vaccine. Plaintiffs may refuse administration of the vaccine, but pursuant to the 
MSU vaccine policy, they may also be terminated from MSU if they do so. The Court 
reiterates its reasoning from the order denying Plaintiffs’ motion for a preliminary injunction: 
“[T]he vaccine is a condition of employment, which Plaintiff does not have a constitutionally 
protected interest in” (Id.). MSU’s vaccine policy does not conflict with the EUA statute; this 
argument is without merit. The Court finds that Plaintiffs have failed to plead sufficient facts 
to allege a violation of the EUA, and in turn, a violation of the Supremacy Clause due to 
preemption. 
Moreover, Defendants also moved to dismiss this argument because the EUA statute 
does not provide a private right of action (see ECF No. 60 at PageID.1365); 21 U.S.C. § 
337(a) (“[A]ll . . . proceedings for the enforcement, or to restrain violations, of this chapter 
shall be by and in the name of the United States.”). While Plaintiffs concede that the EUA 
does not provide a private right of action, they argue that they may seek injunctive relief to 
“cease the violation of their rights to informed consent” under the EUA (ECF No. 62 at 
PageID.1402). Even if the Court accepted this argument, it does not support sufficient facts 
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to allege preemption. Consequently, Count III of Plaintiffs’ first amended complaint must 
also be dismissed for this reason. 
D. Plaintiffs’ “Remaining Claims” 
Finally, Defendants move to dismiss Plaintiffs’ “remaining claims,” arising out of the 
1947 Nuremberg Code, Helsinki Declaration, and HHS Policy for Protection of Human 
Research Subjects (see ECF No. 60 at PageID.1368). In their response to the motion to 
dismiss, Plaintiffs noted that they cited these various international treaties to establish that 
the MSU vaccine policy “violates various principles of human rights law and are not in accord 
with constitutional or international norms,” not because they are bringing claims under these 
treaties (ECF No. 62 at PageID.1406). The Court accepts this assertion. Because Plaintiffs 
are not seeking relief under these treaties, the Court need not “dismiss” these claims. 
IV. Conclusion 
The Court finds that Counts II and III of Plaintiffs’ first amended complaint fail to 
withstand Defendants’ motion to dismiss, and that the dismissal of Count I will be decided 
upon further argument. Accordingly,  
IT IS HEREBY ORDERED that Defendants’ motion to dismiss (ECF No. 59) is 
GRANTED as to Counts II and III and RESERVED as to Count I. Counts II and III are 
dismissed with prejudice. 
 
 
 
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IT IS FURTHER ORDERED that a notice of hearing on Count I of the motion to 
dismiss shall issue contemporaneously with this order. 
 
IT IS SO ORDERED. 
Date:   January 21, 2022    
 
 
 
/s/ Paul L. Maloney                
 
 
 
 
 
 
 
 
Paul L. Maloney 
 
 
 
 
 
 
 
 
United States District Judge 
 
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