Norris v. Samuel L. Stanley, Jr., in his official capacity as President of Michigan State University

CASE SUMMARY

Jeanna Norris is a supervisory Administrative Associate and Fiscal Officer at Michigan State University (MSU). She has naturally-acquired immunity to COVID-19 after recovering from the virus late last year. However, the university has threatened disciplinary action, even termination, if she and other employees do not comply with the school’s mandatory COVID-19 vaccination policy. Ms. Norris is challenging Michigan State’s unconstitutional “COVID Directives” for the Fall 2021 semester. NCLA filed a class-action complaint and a preliminary injunction in the U.S. District Court for the Western District of Michigan on behalf of Ms. Norris and similarly situated individuals at MSU.

MSU first announced its “COVID Directives” for the Fall 2021 semester via email on July 30, and shortly thereafter on its website, alerting faculty, staff, and students that by August 31 they must have completed a full COVID-19 vaccine course or received at least one dose of a two-dose series, unless they obtain a religious or medical exemption. MSU’s policy specifically excludes natural immunity as a basis for a medical exemption.

Ms. Norris has fully recovered from COVID-19, and two recent antibodies tests demonstrate her robust immunity to reinfection. This status also means that Ms. Norris does not pose a threat to anyone else in the Michigan State community. Her immunologist, Dr. Hooman Noorchashm, has advised her that it is medically unnecessary to undergo vaccination at this point. Yet, if Ms. Norris follows her doctor’s advice and elects not to take the vaccine, she faces adverse disciplinary consequences from her employer. This policy cannot reasonably be considered anything other than coercive.

NCLA asks the Court to enjoin enforcement of the policy on constitutional and statutory grounds.

On October 8, 2021, Judge Paul Maloney of the Western District of Michigan denied Plaintiff Jeanna Norris’s motion for a preliminary injunction.

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CASE STATUS: Active

CASE START DATE: August 27, 2021

DECIDING COURT: U.S. District Court for the Western District of Michigan

ORIGINAL COURT: U.S. District Court for the Western District of Michigan

CASE DOCUMENTS

February 22, 2022 | Opinion and Order Granting Motion to Dismiss
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January 21, 2022 | Opinion and Order Granting in Part and Reserving in Part Defendants’ Motion to Dismiss
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January 3, 2022 | Defendants’ Reply in Support of Motion to Dismiss
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December 17, 2021 | Plaintiffs’ Response in Opposition to Defendants’ Motion to Dismiss
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November 19, 2021 | Defendants’ Brief in Support of Motion to Dismiss
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November 18, 2021 | Plaintiff-Appellant’s Emergency Motion for Injunction Pending Appeal
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November 5, 2021 | Class Action Complaint for Declaratory and Injunctive Relief
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October 12, 2021 | Hearing on Motion for Preliminary Injunction
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October 8, 2021 | Opinion Denying Plaintiff’s Motion for Preliminary Injunction
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September 21, 2021 | Motion for Alternative Forms of Relief in Light of the Unauthorized Late Filing of a Second Dr. Zervos Declaration
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September 15, 2021 | Plaintiffs’ Reply Brief in Support of Motion for Preliminary Injunction
September 7, 2021 | Plaintiffs’ Supplement in Support of Motion for Preliminary Injunction
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August 31, 2021 | Order Denying Motion for Temporary Restraining Order
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August 27, 2021 | Plaintiffs’ Proposed Order for Temporary Restraining Order
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August 27, 2021 | Plaintiffs’ Motion for Temporary Restraining Order
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August 27, 2021 | Plaintiffs’ Proposed Order on Preliminary Injunction
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August 27, 2021 | Plaintiffs’ Brief in Support of Motion for a Preliminary Injunction
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August 27, 2021 | Plaintiffs’ Motion for Preliminary Injunction
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August 27, 2021 | Class Action Complaint for Declaratory and Injunctive Relief
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PRESS RELEASES

February 23, 2021 | MI District Court Ruling Keeps MSU Vaccine Mandate in Place, NCLA Plans Appeal to Sixth Circuit

Washington, DC (February 23, 2022) On Tuesday, Judge Paul Maloney of the U.S. District Court for the Western District of Michigan granted Michigan State University’s (MSU) Motion to Dismiss the class-action lawsuit, Norris, et al. v. Samuel L. Stanley, Jr., et al., ruling that the school acted rationally in enforcing its vaccination policy. The New Civil Liberties Alliance believes the Court erred, among other ways, in ruling that MSU’s vaccine mandate survives rational basis review. NCLA plans to file an appeal with the U.S. Court of Appeals for the Sixth Circuit.

The rationale MSU has offered means that it could mandate the vaccine for each employee every day—because that would boost their antibody levels. At the very least, the question warrants further litigation and cannot be resolved at the motion-to-dismiss stage. Additionally, this case raises the specific question whether vaccinating the naturally immune constitutes a violation of constitutional rights, since there is no compelling government interest to do so, and vaccination always carries a risk of (possibly severe) adverse effects.

MSU’s vaccine mandate requires all faculty, staff, and students to be fully vaccinated or obtain an approved exemption. Naturally acquired immunity is explicitly excluded as the basis for an exemption from the blanket rule, even though natural immunity provides equivalent or greater protection against re-infection and transmission to others than immunity generated by Covid-19 vaccines. Perversely, while MSU rejects natural immunity, it accepts non-FDA approved, inferior foreign vaccines such as Sinovac and Sinopharm, which start out with approximately 50% efficacy rates and wane relatively quickly.

Two plaintiffs, Kraig Ehm and D’Ann Rohrer, who demonstrated naturally acquired immunity to Covid-19 were fired by MSU during the course of the lawsuit for refusing to take the vaccine. The plaintiffs have experienced, and will continue to experience, concrete and particularized harm as a direct consequence of MSU’s policy. MSU’s vaccine mandate not only violates plaintiffs’ bodily autonomy and right to informed consent, but it unconstitutionally forces them to choose between keeping their jobs and asserting control over personal health decisions.

In a silver lining to the District Court’s decision, Judge Maloney indicated that even though MSU achieved its goal of protecting staff and students from Covid-19 based on guidance from the Centers for Disease Control and Prevention (CDC), the calculus may have changed going forward, given CDC’s new research on the strong protection provided by natural immunity. In other words, considering the new research, it may no longer be rational for universities to fire those who can establish that they have natural immunity.

NCLA released the following statements:

“NCLA is disappointed that the district court granted MSU’s motion to dismiss. We understand that the court believed it had no choice given the prevailing case law. However, contrary to the judge’s opinion, a higher level of review is warranted. Under such a standard, MSU’s policy is unconstitutional. We look forward to vindicating our clients’ rights in the Sixth Circuit.”
Jenin Younes, Litigation Counsel, NCLA

“Michigan State’s policy is completely irrational and should have been struck even on the lowest standard of review. But when your government employer is forcing an unnecessary medical procedure on a disfavored group, the courts should apply a more searching standard than the district court believed it was bound to apply.”
John J. Vecchione, Senior Litigation Counsel, NCLA

For more information visit the case page here or watch the related case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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December 10, 2021 | Watch: NCLA Video Reveals Impact of Vaccine Mandates on College Employees with Natural Immunity

Washington, DC (December 10, 2021) Thousands of Americans across the country are being forced to choose between getting a COVID-19 vaccine or keeping their jobs. The situation is intolerable, especially for those who already have antibodies against the virus. A video released today by the New Civil Liberties Alliance brings to light the constitutional issues associated with vaccine mandates for people who have obtained naturally acquired immunity through a prior COVID-19 infection. Jeanna Norris, a Supervisory Administrative Associate and Fiscal Officer at Michigan State University (MSU), and Todd Zywicki, a Law Professor at George Mason University’s (GMU) Antonin Scalia School of Law, sued their employers for violating their constitutional rights to bodily autonomy if they refused to get vaccinated.

 

 

Ms. Norris, lead plaintiff in Norris, et al. v. Samuel L. Stanley, Jr., et al., and Prof. Zywicki, lead plaintiff in Professor Todd Zywicki v. Gregory Washington, have fully recovered from COVID-19, and accordingly have natural immunity to the virus, as demonstrated by antibody testing. Medical experts provided attestations in both cases explaining that it is unnecessary from a medical standpoint for these individuals to undergo vaccination, as their naturally acquired immunity means they pose virtually no threat to themselves nor to anyone else—certainly no more threat than a fully vaccinated individual poses.

Ms. Norris and Professor Zywicki received exemptions based on conditions unique to them. However, two other plaintiffs in the class-action lawsuit brought by NCLA against MSU have lost their jobs as a result of the vaccine mandate. Kraig Ehm, a video producer at MSU, from Laingsburg, Michigan, and D’Ann Rohrer, an extension educator at MSU from Ludington, Michigan, were both terminated in November because they declined to receive a COVID-19 vaccine.

The U.S. District Court for the Western District of Michigan should recognize that employers cannot coerce or pressure employees into taking Emergency Use Authorization (EUA) vaccines by threatening them with termination if they don’t comply.

Excerpts from the video:

“NCLA has provided the opportunity to be heard and to have natural immunity validated, not just by the medical community, who already knows this exists, but by everyone. That natural immunity is legitimate and that it’s protective and that we are not a threat.”
— Jeanna Norris, Plaintiff, Norris, et al. v. Samuel L. Stanley, Jr., et al.

“It’s not just that it’s scary. It’s frustrating. It’s belittling to have these sorts of petty little tyrants standing between me and my doctor on what is an incredibly important and personal choice that can affect the entire rest of your life and health.”
— Todd Zywicki, Plaintiff, Professor Todd Zywicki v. Gregory Washington, et al.

“We think that the courts are wrong to continue to apply Jacobson to this situation. Since Jacobson was decided, there’s been a growing recognition of the importance of people’s ability to decline medical treatments, which is what’s at issue here.”
Jenin Younes, Litigation Counsel, NCLA

“It’s unacceptable that people are having their jobs threatened in order to get this vaccine. That’s called an unconstitutional condition. It’s taking something that’s your constitutional right, that is, the right to refuse a vaccination, the right to your bodily integrity, and it’s using something else that’s valuable to you: your job, your livelihood, and it’s trying to leverage that thing that is meaningful to you in order to force you to give up your constitutional right. And that is why NCLA is fighting against these vaccine mandates where this unconstitutional condition leverage is being used.”
Mark Chenoweth, Executive Director and General Counsel, NCLA

For more information visit the case pages for Norris here and Zywicki here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

 

August 27, 2021 | NCLA Represents COVID-19 Survivors in Class-Action Lawsuit Against Mich. State U. Vaccine Mandate

Washington, DC (August 27, 2021) – Jeanna Norris is a supervisory Administrative Associate and Fiscal Officer at Michigan State University (MSU). She has naturally-acquired immunity to COVID-19 after recovering from the virus late last year. However, the university has threatened disciplinary action, even termination, if she and other employees do not comply with the school’s mandatory COVID-19 vaccination policy. Ms. Norris is challenging Michigan State’s unconstitutional “COVID Directives” for the Fall 2021 semester. Today, the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a class-action complaint and a preliminary injunction in the U.S. District Court for the Western District of Michigan on behalf of Ms. Norris and similarly situated individuals at MSU.

MSU first announced its “COVID Directives” for the Fall 2021 semester via email on July 30, and shortly thereafter on its website, alerting faculty, staff, and students that by August 31 they must have completed a full COVID-19 vaccine course or received at least one dose of a two-dose series, unless they obtain a religious or medical exemption. MSU’s policy specifically excludes natural immunity as a basis for a medical exemption.

Ms. Norris has fully recovered from COVID-19, and two recent antibodies tests demonstrate her robust immunity to reinfection. This status also means that Ms. Norris does not pose a threat to anyone else in the Michigan State community. Her immunologist, Dr. Hooman Noorchashm, has advised her that it is medically unnecessary to undergo vaccination at this point. Yet, if Ms. Norris follows her doctor’s advice and elects not to take the vaccine, she faces adverse disciplinary consequences from her employer. This policy cannot reasonably be considered anything other than coercive.

The Supreme Court has recognized that a “forcible injection … into a nonconsenting person’s body represents a substantial interference with that person’s liberty[.]” Given the antibodies generated by her naturally-acquired immunity, MSU cannot claim a compelling governmental interest in overriding Ms. Norris’s personal autonomy. Thus, forcing her either to be vaccinated or to suffer adverse professional consequences violates her constitutional rights under the Ninth and Fourteenth Amendments. The irrationality of MSU’s policy is further highlighted by its accepting several vaccines that are far inferior to natural immunity, including the Janssen, Sinovac, and Sinopharm vaccines. MSU’s policy also constitutes an unconstitutional condition because it premises Ms. Norris’s enjoyment of some rights upon her surrendering other rights.

Even though Pfizer’s COVID-19 vaccine (now marketed as “Comirnaty”) received full FDA approval on Monday, the three vaccines used widely in the United States—the remaining Pfizer BioNTech doses, and the Moderna and Janssen vaccines—remain under Emergency Use Authorization (EUA). The EUA statute requires informed consent. Therefore, beyond its constitutional defects, MSU’s mandatory vaccination policy is irreconcilable with the objectives of the federal statute governing administration of medical products authorized for emergency use. Pursuant to the Supremacy Clause of the U.S. Constitution, a state or local law is preempted when it creates “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

NCLA asks the Court to enjoin enforcement of the policy on constitutional and statutory grounds.

NCLA released the following statement:

“Along with all too many Americans, Ms. Norris is facing an impossible dilemma: lose her job or receive a vaccine that is medically unnecessary for her. Michigan State has placed her, and others like her, in this position for no good reason, because she has robust immunity as established by the overwhelming scientific literature. Many public health authorities, the media, and the CDC have resisted the conclusion that natural immunity exists and is as protective or more so than the best available vaccines. Through Ms. Norris’s case, the integrity of the scientific process, which has been severely compromised during the pandemic, can be vindicated through the court system.”
Jenin Younes, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document