IN THE COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

BENJAMIN LIPP, et al., : Case No. A-2104238

:
Plaintiffs, : Judge: Leslie E. Ghiz
:
v. :
:
UNIVERSITY OF CINCINNATI, et al., :
:
Defendants. :

DEFENDANTS’ REPLY IN SUPPORT OF THEIR

MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT

I. Introduction

Plaintiffs are asking this Court to manufacture standing and issue an advisory opinion on

the University’s COVID-19 policies. Plaintiffs concede that they have neither suffered nor alleged

any actual injury; they instead ask for “pre-enforcement” relief. While Plaintiffs state, at best,

generalized grievances about the University’s policies, they fail to articulate what specific injury

their vague request would remedy. That is, Plaintiffs fail to identify any actual injury after an

entire school year has nearly passed, nor have they pled any likely scenario where they could suffer

future harm. This is particularly true given that the University will no longer require vaccination

against COVID-19 when the 2022 summer term starts. See Exhibit A, COVID-19 Vaccine

Practices.1 The Court should not indulge such speculative claims and, as other Ohio courts facing

similar claims have done, should grant Defendants’ Motion to Dismiss.

1
As noted in the University’s memorandum in support of its motion to dismiss, because the University’s
policies are “incorporated into [the] pleadings” here, the Court may properly consider those policies as they currently
stand under a Rule 12 motion. (Internal quotation marks omitted.) Hawke, Inc. v. Universal Well Servs., Inc., 9th Dist.
Summit No. 25056, 2010-Ohio-4730, ¶ 9

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 Further, even assuming arguendo that Plaintiffs did have standing, they do not allege any

claim upon which this Court could grant relief. The Ohio General Assembly has granted the

University broad authority to implement policies relating to its administration. Disagreeing with

the Ohio Legislature’s and University’s decisions, Plaintiffs resort to a kitchen-sink approach,

alleging that the University’s policies violate the nondelegation doctrine, constitute forced medical

treatment, are coercive, and amount to mandates or discrimination on the basis of vaccines subject

to an emergency use authorization. Plaintiffs’ arguments, however, are not cognizable and fail as

a matter of law. The nondelegation doctrine is wholly inapplicable to this case because Plaintiffs

are challenging the University’s exercise of validly delegated authority, not the General

Assembly’s delegation of that authority. Similarly, the University cannot force or coerce any

student to accept medical treatment as no student is required to attend the University in the first

place—let alone take on-campus classes. Neither does the University mandate vaccines that are

subject to an emergency use authorization; the Pfizer and Moderna vaccines have been fully

approved.

In sum, Plaintiffs are attempting to use this forum—and valuable judicial resources—to

wage a futile crusade against lawful, science-based education policies designed to keep students

safe and healthy. And they have either been granted an exemption or been vaccinated. Plaintiffs

simply disagree with the University’s policies, but to survive the University’s Motion to Dismiss,

they must allege a cognizable legal claim. They have not done so, and this Court should grant the

Motion to Dismiss as a result.

II. Plaintiffs do not have standing to challenge the University’s COVID-19 policies.

Plaintiffs concede that they have not alleged an actual injury and therefore cannot

demonstrate traditional, common-law standing. See Opp. at 6. Cf. Ohioans for Concealed Carry,

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 Inc. v. Columbus, 164 Ohio St.3d 291, 2020-Ohio-6724, 172 N.E.3d 935, ¶ 12. (“[C]ommon-law

standing requires the litigant to demonstrate that he or she has suffered (1) an injury (2) that is

fairly traceable to the defendant’s allegedly unlawful conduct and (3) is likely to be redressed by

the requested relief.”), citing Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975

N.E.2d 977, ¶ 22. Instead, Plaintiffs attempt to establish statutory standing under the Declaratory

Judgment Act, R.C. 2721.03, seeking pre-enforcement, pre-injury relief. Opp. at 6.

While it is true that, under Ohio law, “[s]tanding may also be conferred by statute[,]” see

Ohioans at ¶ 12, that general rule does not end the analysis, nor does it provide standing in every

statutory circumstance. As relevant here, the Declaratory Judgment Act provides standing where

a plaintiff’s “rights, status, or other legal relations are affected by a constitutional provision,

statute, [or] rule . . . .” R.C. 2721.03. Plaintiffs argue that the University’s COVID-19 policies

affect their rights under: (1) the Ohio Constitution—whether the University’s policies exceed its

authority; (2) R.C. 2905.12 and 2307.60—whether the University policies are coercive; and (3)

R.C. 3792.04—whether the University’s policies mandate or discriminate based on vaccines

subject to emergency use authorization. Opp. at 7. Importantly, however, none of these broad

allegations without more demonstrate that Plaintiffs have standing.

In fact, Plaintiffs miss the point entirely by simply listing alleged constitutional or statutory

violations in an effort to establish standing. Whether the University has violated a constitutional

or statutory provision goes to the merits of the case, not the issue of whether Plaintiffs have

standing to sue. And Plaintiffs cannot establish standing simply by arguing that their claims are

meritorious. As the Supreme Court of Ohio has succinctly stated: “Standing does not depend on

the merits of the plaintiff’s claim. Rather, standing depends on whether the plaintiffs have alleged

such a personal stake in the outcome of the controversy that they are entitled to have a court hear

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 their case.” ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-Ohio-2382, 13 N.E.3d

1101, ¶ 7. Ohio law is clear, even for declaratory judgment actions under R.C. 2721.03, “a plaintiff

must nonetheless demonstrate ‘actual present harm or a significant possibility of future harm to

justify pre-enforcement relief.’” Ohioans at ¶ 32, quoting Peoples Rights Org., Inc. v. Columbus,

152 F.3d 522, 527 (6th Cir.1998) (emphasis added). Plaintiffs cannot establish standing under the

Declaratory Judgment Act (or otherwise) by merely asserting that their rights are affected—that

is, they cannot demonstrate “actual present harm or a significant possibility of future harm.”

The two cases Plaintiffs primarily rely upon are instructive on this point. In Ohioans, 164

Ohio St.3d 291, 2020-Ohio-6724, 172 N.E.3d 935, two gun-rights organizations sued the City of

Columbus, challenging an ordinance prohibiting rapid-fire gun components. Id. at ¶ 2–3. As

relevant here, the organizations sought a declaration that the ordinance was unconstitutional,

arguing that they had standing under Ohio’s Declaratory Judgment Act. Id. at ¶ 30. Even though

the organization alleged that their members owned firearms (and were thus subject to the

ordinance), they never alleged that they owned, wanted to own, or tried to sell the banned part. Id.

at ¶ 35. The Supreme Court thus concluded that the plaintiffs in Ohioans had no standing because

the complaint was “devoid of any allegation on which [to] conclude that there is a significant

possibility of future injury.” Id.

Similarly, in ProgressOhio.org, a nonprofit organization and several state legislators

challenged the JobsOhio Act, which created a nonprofit for the purpose of business development.

139 Ohio St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, at ¶ 2. The plaintiffs there alleged that the

Act violated the Ohio Constitution’s proscription of spending, corporate creation, and corporate

investment. Id. at ¶ 4. And just like in Ohioans, the Court held that the plaintiffs had no standing,

even under the Declaratory Judgment Act, because they failed to show “any rights at stake or that

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 speedy resolution will bring them any concrete relief.” Id. at ¶ 19. The plaintiffs in that case

“simply argue[d] that they ha[d] an idealistic opposition to the government’s use of public funds.”

(Internal quotation marks omitted.) Id. As the Court noted, “ideological opposition . . . is not

enough.” Id. at ¶ 1. Similarly, to demonstrate standing here, Plaintiffs must identify a “significant

possibility of future harm.” Ohioans at ¶ 32. Their failure to do so requires dismissal as a matter

of law.

Plaintiffs appear to hope that ideological opposition will be enough to create standing. At

best, Plaintiffs allege that the University requires students to be vaccinated. Opp. at 9. But as their

Amended Complaint concedes, three plaintiffs—Lipp, Seymore, and Verbarg—are exempted

from the vaccine requirement. Am. Compl. ¶ 12. And the remaining plaintiff—Lekson—is fully

vaccinated. Id. ¶ 13. Thus, on the issue of vaccination, Plaintiffs have suffered no past harm,

given the ready exemptions. And they face no possibility of future harm, particularly considering

the end of the University’s vaccination requirement—from which Plaintiffs were already exempt

or with which they had complied. See Exhibit A.

Plaintiffs also offer that the University’s other policies “require[] them to comply with

testing, masking, quarantine and other health measures.” Opp. at 9, citing Am. Compl. ¶¶ 5–7. Of

course, Plaintiffs conveniently omit that the University’s testing and masking policies have ended,

again precluding any likelihood of future harm. (See University’s Mem. in Support of Mot. to

Dismiss, Exhibits C, D, and E.) But even taking Plaintiffs’ argument at face value, their

speculation about future harm strains credulity when, after an entire school year has nearly passed,

Plaintiffs still have not alleged a single concrete injury from the policies that are the subject of

their Amended Complaint. They have either received exemptions from vaccination or are already

vaccinated. Nor do they allege that they have been required to undergo additional safety measures,

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 such as testing or quarantining, or that the University has otherwise subjected them to any specific

harm under the policies. Plaintiffs ask this Court to believe that, despite alleging no injury this

school year, and the general unwinding of COVID-19 protocols, they face a “significant possibility

of future harm” if they decide to return to on-campus classes next fall. The Court should not

indulge such speculation to permit Plaintiffs’ claims to proceed.

Plaintiffs finally argue that they are the “object” of the University’s policies, and that this

status gives them a “strong claim for standing.” Opp. at 10, citing O’Neal v. State, Slip Opinion

No. 2021-Ohio-3663, --N.E.3d--. Selective quoting aside, Plaintiffs’ citation to O’Neal is

misplaced because O’Neal did not address whether an injury exists, but rather whether declaratory

relief could satisfy the redressability element for standing. See id. at ¶ 10. In that case, two

condemned inmates sued Ohio’s Department of Rehabilitation and Correction, challenging the

Department’s new protocols for carrying out death sentences. Id. at ¶ 1. As prisoners condemned

to die by the Department’s new protocols, there was no dispute that the inmates had “a personal

stake in the outcome,” and thus had an injury. See Id. at ¶ 10. Instead, the state argued that the

inmates had no standing because a declaratory judgment would not provide redress for their

imminent injuries. Id. at ¶ 10, 12. In response to this argument, the Court observed that as “objects

of the injurious state action . . . . [the inmates’] claim to standing [was] a strong one.” Id.

Plaintiffs’ attempt to use O’Neal to support standing here is an obvious mismatch. Unlike in

O’Neal, Plaintiffs have not shown that they are the “objects” of any “injurious” University action.

Besides theoretical possibilities, they have not alleged any threatened harm, let alone concrete

adverse action. No one has forcibly vaccinated Plaintiffs. No one has banned any Plaintiff from

University activity. And they do not allege any other harm. Nor have they alleged facts showing

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 significant likelihood of future harm. Plaintiffs have simply failed to demonstrate any injury or

personal stake in the outcome to create standing and their claims fail as a result.

Relatedly, Plaintiffs also fail to explain what, exactly, the Court should adjudicate

regarding the University’s former testing and facial covering policies. In short, Plaintiffs are

asking this Court to provide an advisory opinion on policies that may or may not be implemented—

to some degree—at some point in the future. This Court should not waste resources deciding such

speculative issues that may or may not come to pass.

III. The University’s COVID-19 policies do not violate Ohio law.

Even if Plaintiffs had standing—which they do not—the Amended Complaint nonetheless

fails to show that the University’s health and safety policies violate Ohio’s Constitution or statutes.

For the reasons set forth in the Motion and below, Plaintiffs can prove no facts on which they could

obtain the declaratory and injunctive relief they seek.

A. The University’s policies are well within its authority to issue health guidelines.

The General Assembly has given colleges and universities “full power and authority on all

matters relative to the administration of such college or university.” See R.C. 3345.021.

Furthermore, the General Assembly has delegated broad administrative authority to the University

of Cincinnati in particular. Revised Code 3361.01 provides that the University’s Board of Trustees

“shall do all things necessary for the . . . successful and continuous operation of the university and

may adopt . . . rules for the conduct . . . of the university.” R.C. 3361.01. Despite these broad

grants of authority, Plaintiffs argue that the General Assembly has specifically limited the

University’s authority regarding the COVID-19 pandemic. Opp. 20–21. Plaintiffs’ assertion is

incorrect.

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 In their effort to limit the University’s broad statutory authority, Plaintiffs argue that four

unrelated health statutes also apply to the University. The first two statutes apply to the Ohio

Department of Health: (1) R.C. 3701.13(B)(1) provides that the Ohio Department of Health “shall

have supervision of all matters relating to the preservation of the life and health of the people”;

and (2) R.C. 3701.56 provides that “officers of state institutions . . . shall enforce . . . the rules the

department of health adopts.” The third and fourth provisions Plaintiffs cite pertain to local boards

of health: (3) R.C. 3709.212 provides that boards of health may issue health orders against only

those individuals who have been medically diagnosed with or come into contact with someone

with a disease; and (4) R.C. 3709.99 provides that individuals who violate local health orders may

face fines or imprisonment. From these selected statutes, Plaintiffs confusingly reason that the

University must enforce and comply with state health orders, and therefore can issue no campus-

level policy that the health agencies could not implement against the general public. Opp. at 20–

21.

Not only is Plaintiff’s interpretation incongruous, but it tramples well-established canons

of statutory construction and basic reasoning. First, the cited statutes say nothing about a

university’s authority to manage its affairs—they address health officials’ authority over the

general public. And no matter how much Plaintiffs wish the General Assembly had thought to

apply these statutory limitations to universities, “[i]t is well recognized that a court cannot read

words into a statute.” State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs.,

124 Ohio St.3d 390, 2010-Ohio-169, 922 N.E.2d 945, ¶ 21. The General Assembly could have

easily included universities within the list of state agencies prohibited from issuing certain types

of health orders. It did not. See, e.g., Crawford-Cole v. Lucas Cty. Dept. of Job & Family Servs.,

121 Ohio St.3d 560, 2009-Ohio-1355, 906 N.E.2d 409, ¶ 42 (“Here, the legislature could have

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 expressly included county agencies in the definition of ‘agency’ . . . but it did not.”). “And . . . the

canon expressio unius est exclusio alterius tells us that the express inclusion of one thing implies

the exclusion of the other.” (Internal quotation marks omitted.) Id. The Court therefore should

not rewrite the Ohio Legislature’s health agency statutes as part of Plaintiffs’ misplaced effort to

apply them to the University.

Second, and most importantly, Plaintiffs’ interpretation would mandate absurd results. By

Plaintiffs’ reasoning, the proffered health department law would forbid this Court from requiring

courtroom participants to wear facial coverings. After all, as officers of a state institution, judges

are required to “enforce . . . rules the department of health adopts” and are presumably required to

comply with public health orders, just like everyone else. See R.C. 3701.56 and R.C. 3709.99.

Plaintiffs’ argument is a non sequitur because there is no relationship between the statutes defining

the Health Department’s authority and statutes outlining the University’s authority. And their

attempt to restrict the University’s authority to promulgate health and safety policies by citing

statutes regarding state and local health agencies’ separate authority demonstrates that their

position is without support. Plaintiffs may dislike the University’s COVID-19 policies, but

disapproval does not equal a legally cognizable claim.

B. The University’s policies do not violate the nondelegation doctrine.

Plaintiffs’ argument that the University’s policies violate the nondelegation doctrine is

similarly misplaced. The nondelegation doctrine is “the principle that the General Assembly

cannot delegate its essential legislative power to administrative bodies or officers.” Redman v.

Ohio Dept. of Indus. Relations, 75 Ohio St.3d 399, 403, 662 N.E.2d 352 (1996). Thus, a

nondelegation claim constitutes a challenge to the constitutionality of a particular statute—an

allegation that the General Assembly granted too much legislative authority in drafting a statute.

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 See, e.g., Capital Care Network of Toledo v. Ohio Dept. of Health, 153 Ohio St.3d 362, 2018-

Ohio-440, 106 N.E.3d 1209, ¶ 114 (“A statute does not unconstitutionally delegate legislative

power if it establishes, through legislative policy and such standards as are practical, an intelligible

principle . . . .’”) (Emphasis added.), quoting Redman at 406.

Plaintiffs attempt to apply the nondelegation doctrine in reverse, arguing that the

“Defendant’s . . . actions violate the non-delegation doctrine.” (Emphasis added.) Opp. at 18. But

Plaintiffs have brought no claim challenging any statute as unconstitutional—they have instead

challenged the University’s exercise of its established statutory authority. If Plaintiffs wish to

challenge the General Assembly’s delegation of authority to Ohio universities as unconstitutional,

they may have legal avenues for doing so. But they cannot do so here on their claims as pled.

Plaintiffs next argue that “[a]pplying a standard of reasonableness is how Ohio courts have

construed the statutes granting general authority to public universities to avoid rendering them

unconstitutional under the non-delegation doctrine.” Opp. at 10, citing Akron v. Rowland, 67 Ohio

St. 3d 374, 380 (1993). But Akron had nothing to do with the nondelegation doctrine or public

universities. It instead addressed whether the City of Akron’s antiloitering ordinance was

unconstitutional for vagueness and overbreadth. Akron at 389. Plaintiffs nonetheless double down

by citing State ex rel. Barno v Crestwood Bd. Of Edn., 134 Ohio App 3d. 494, 503 (11th

Dist.1998); McGinnis v Walker, 40 N.E.2d 488, 492 (2d Dist.1941); and Long v. Bd. of Trustees,

24 Ohio App. 261, 157 N.E. 395 (2d Dist.1926). Opp. at 17–18. But none of these cases even

mentions the nondelegation doctrine. Barno analyzed a school district’s authority under R.C.

3313.47 and 3313.20(A), see Barno at 502, statutes wholly inapplicable to this case. Although

McGinnis involved a university, it said nothing about universities being assessed under a general

reasonableness standard. Instead, it held that “university and college authorities may make all

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 necessary and proper rules and regulations for the orderly management of their institutions and

preservation of discipline,” and that courts may intervene where the policy is “palpably

unreasonable.” (Emphasis added.) McGinnis at 491. Finally, Long addressed whether the Ohio

State University had authority to “establish and maintain the University Press Book Store, and to

assume indebtedness and contract debts.” Long at 262. Plaintiffs’ reliance on Long in this case is

misplaced. In any event, even assuming that the University’s policies must meet a reasonableness

standard, the policies here would easily satisfy that meager threshold: they are based on current

science, align with guidelines from the CDC and Ohio Department of Health, and promote the

health of the University’s on-campus community. In fact, Plaintiffs concede this fact by citing the

CDC’s guidelines for universities in their Brief in Opposition. See Opp. at 5.

Plaintiffs finally argue that the University’s position—that it has broad statutory authority

to administer health and safety guidelines—“would render the statute unconstitutional under the

non-delegation doctrine.” Opp. at 21. Yet again, Plaintiffs offer nothing more than an unsupported

assertion. The plain words of R.C. 3345.021 are clear: “the board of trustees of any college or

university . . . shall have full power and authority on all matters relative to the administration of

such college or university.” And Plaintiffs cite no caselaw suggesting that a plain-language

interpretation of this statute is constitutionally impermissible. Neither do they explain why such

an interpretation could theoretically constitute an unconstitutional delegation.

Notwithstanding their disjointed discussion of the nondelegation doctrine, Plaintiffs

relatedly offer that the University’s position is precluded by the Ohio Attorney General’s position

in several unrelated federal cases regarding COVID-19 restrictions issued by various federal

agencies. Opp. at 18–19. But Plaintiffs fail to explain what relevance the Attorney General’s

challenge to interpretations of federal statutes or regulations could have for this case. Nothing

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 about the Attorney General’s challenges of federal actions under federal law preclude him from

defending the University’s actions under state law. Plaintiffs do not—and cannot—show

otherwise. Importantly, in each of those instances, the federal courts evaluated COVID-19

restrictions based on the limited authority delegated to different agencies by Congress. None dealt

with the broad delegation of power by the Ohio General Assembly to state universities.

C. The University’s policies do not constitute forced medical treatment.

Plaintiffs fail to address any of the University’s arguments as to why its COVID-19 policies

cannot constitute forced medical treatment. Opp. at 21–24. As the University pointed out in its

initial brief, facial coverings do not constitute medical treatment in the first place. See Machovec

v. Palm Beach Cty., 310 So.3d 941, 946 (Fla. Dist. Ct. App. 2021); Forbes v. Cty. of San Diego,

2021 WL 843175, *8 (S.D.Cal. 2021). Further, Plaintiffs cannot be forced to take a vaccine or

wear a facial covering because they are not required to attend the University in the first place—let

alone take on-campus classes. As the U.S. Court of Appeals for the Seventh Circuit held: “If

conditions of higher education may include surrendering property [tuition] and following

instructions about what to read and write, it is hard to see a greater problem with medical conditions

that help all students remain safe when learning.” Klaassen v. Trustees of Indiana Univ., 7 F.4th

592, 594 (7th Cir.2021), appeal denied, case no. 21A15.

Plaintiffs ignore these general points and rest their constitutional claim on a vacated district

court case, arguing that the University has imposed an unconstitutional condition on their right to

refuse medical treatment. Opp. at 22, citing Klaassen v. Trustees of Indiana Univ., 549 F.Supp.3d

836, 2021 WL 3073926 (N.D.Ind. 2021) (“Klaassen I”), vacated and remanded with instructions

to dismiss as moot, 24 F.4th 638, 640. But as a factual matter, Plaintiffs have not alleged that they

have been denied any educational benefit under the University’s policies for exercising their

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 constitutional rights. Moreover, Klaassen I rejected the very argument Plaintiffs make here.

There, students were objecting to Indiana University’s COVID-19 policies, arguing that the

university was “denying a benefit—a public university education—because they [were] exercising

a constitutional right to refuse a vaccine.” Id. at 868. The court rejected the students’ constitutional

claim while also noting: “the Constitution never provides a fundamental right to a collegiate

education. Nor does it secure as a fundamental liberty a student’s right to attend a public university

no matter his or her vaccinated status.” Id. at 870. Besides no longer being valid precedent,

Klaassen I (and its subsequent history) supports the University’s position, not that of Plaintiffs.

D. Plaintiffs’ claim for coercion under R.C. 2905.12 fails because the statute
applies only to criminal acts.

As noted in the University’s primary brief, Ohio courts have consistently held that criminal

statutes in general, and R.C. 2905.12 in particular, do not give rise to a civil claim. See Heskett v.

Van Horn Title Agency, Inc., 10th Dist. Franklin No. 06AP-549, 2006-Ohio-6900, ¶ 26 (“Neither

are we aware of ‘coercion’ as a cognizable civil cause of action.”); Simpson v. Voiture Nationale

La Societe Des Quarante Hommes, 2d Dist. Montgomery No. 29016, 2021-Ohio-2131, ¶ 25

(agreeing with trial court’s judgment that R.C. 2905.12 does not provide a civil claim). Plaintiffs

ignore these authorities and cite Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, ¶ 1,

which addressed a different statute altogether (R.C. 2307.60), and held that that statute provided a

civil claim for injuries resulting from criminal conduct. Opp. at 24. Not only have Plaintiffs failed

to allege any monetary or physical injury, but they do not even assert a claim under R.C. 2307.60.

The statute cannot be found in their Amended Complaint. Plaintiffs instead assert a claim for

coercion under R.C. 2905.12, which Ohio courts do not recognize as a civil cause of action.

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 Furthermore, even if R.C. 2905.12 could give rise to a civil claim, the Amended

Complaint’s allegations fail to show that the University violated its proscriptions. Plaintiffs have

not been forced “into taking or refraining from action concerning which [they] ha[ve] a legal

freedom of choice.” See R.C. 2905.12(A). They are not being forced to attend the University,

have been granted exemptions to the vaccine requirement or have chosen to be vaccinated, and do

not otherwise allege that they have been forced to do (or not do) anything under the University’s

other COVID-19 policies. The University has full authority to promulgate and enforce its health

and safety policies, including those related to COVID-19. And requiring a student, who wants to

come on campus, to comply with reasonable health and safety policies does not and cannot

constitute coercion. See Klaassen, 7 F.4th at 594 (“If conditions of higher education may include

surrendering property [tuition] and following instructions about what to read and write, it is hard

to see a greater problem with medical conditions that help all students remain safe when

learning.”).

E. The University’s policies comply with R.C. 3792.04 because they do not
mandate or discriminate based on vaccines subject to emergency use
authorization.

R.C. 3792.04 prohibits state institutions of higher education from requiring or

discriminating on the basis of vaccines that have not yet been fully approved. See R.C.

3792.04(B)(1), (2). The University’s policies comply with this statute because the FDA has fully

approved both the Pfizer and Moderna vaccines. To avoid this obvious conclusion, Plaintiffs hang

their entire argument on the FDA’s observation that, although they have the same formulation,

Pfizer’s post-approval doses (labeled COMIRNATY) are legally distinct for the FDA’s purposes.

Internal FDA technicalities aside, the fact remains that the FDA considers Pfizer- and

COMIRNATY-labeled vaccines to be the same. See Food & Drug Administration, Comirnaty and

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 Pfizer-BioNTech COVID-19 Vaccine,2 (“The vaccine [which] has been known as the Pfizer-

BioNTech COVID-19 Vaccine . . . will now be marketed as Comirnaty . . . .”) (last visited April

16, 2022). The FDA has similarly rejected any pre- and post-approval distinctions regarding

Moderna doses. See U.S. Food & Drug Administration, Coronavirus (COVID-19) Update: FDA

Takes Key Action by Approving Second COVID-19 Vaccine,3 (“Today, the U.S. Food and Drug

Administration approved a second COVID-19 vaccine. The vaccine has been known as the

Moderna COVID-19 Vaccine.”) (last visited April 17, 2022). Plaintiffs’ allegations about the

fully-approved vaccines’ “unavailability” are thus disingenuous at best. Alterations to marketing

terminology have not changed the vaccines’ medical formulation (or efficacy) and cannot support

Plaintiffs’ claims here.

Most importantly, courts addressing this issue have spoken unequivocally and

unanimously: the Pfizer vaccine has been fully approved and is the same as COMIRNATY, labels

notwithstanding.4 Although few courts have had the opportunity to address this issue in relation

to the Moderna vaccine, considering it was only recently approved, at least one court has similarly

2
https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/comirnaty-and-
pfizer-biontech-covid-19-vaccine#additional.
3
https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-takes-key-action-
approving-second-covid-19-vaccine.
4
Valdez v. Grisham, -- F.Supp.3d --, 2021 WL 4145746, *4 (D.N.M. Sept. 13, 2021) (“[T]he FDA has now
given its full approval – not just emergency use authorization – to the Pfizer vaccine as administered to individuals 16
years of age and older.”); United States v. Rand, 2021 WL 4394782, *4 (D.Nev. Sept. 24, 2021) (same); Johnson v.
Brown, -- F.Supp.3d --, 2021 WL 4846060, *7 (D.Or. Oct. 18, 2021) (same); Pelekai v. Hawai’i, 2021 WL 4944804,
*5 (D.Haw. Oct. 22, 2021) (same); Doe v. City Univ. of New York, 2021 WL 5644642, *1 (S.D.N.Y. Dec. 1, 2021)
(same); United States v. Tyler, 2021 WL 3810775, *4 (E.D.Mich. Aug. 26, 2021) (same); United States v. Litman,
2021 WL 4352795, *3 (C.D.Ill. Sept. 24, 2021) (“The Pfizer vaccine received full FDA approval on August 23,
2021.”) (same).

15

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 declared that it is fully approved. See United States v. Trujillo, D.Ariz. No. CR-08-00001-001,

2022 WL 742730, *2 (Mar. 11, 2022) (“[T]he Moderna vaccine . . . has since been fully approved

for use by individuals eighteen years or older.”).

Plaintiffs are asking this Court to be the first to declare that the Pfizer and Moderna

vaccines have not been fully approved by the FDA. The FDA has unequivocally stated that it has

fully approved both vaccines, and courts have unanimously agreed. Because the Pfizer and

Moderna vaccines have been fully approved, the University’s policies do not require vaccines

subject to emergency use authorization or discriminate based on those vaccines. As such, R.C.

3792.04 does not apply here.

IV. Conclusion

For the foregoing reasons and those in Defendants’ Motion to Dismiss, this Court should

dismiss the Amended Complaint in its entirety for lack of standing and/or for failure to state a

claim upon which relief may be granted.

Respectfully submitted,

DAVID A. YOST
ATTORNEY GENERAL OF OHIO

By: /s/ Ali Razzaghi

Ali Razzaghi (0080927)
Ryan W. Goellner (0093631)
Nathaniel L. Truitt (0100459)
FROST BROWN TODD LLC
3300 Great American Tower
301 E. Fourth Street
Cincinnati, OH 45202
Phone: (513) 651-6800
Fax: (513) 651-6981
arazzaghi@fbtlaw.com
rgoellner@fbtlaw.com
ntruitt@fbtlaw.com
Special Counsel for Defendants

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 CERTIFICATE OF SERVICE

I hereby certify that on April 25, 2022, a copy of the foregoing was served, via email and

regular mail, upon the following:

Warner Mendenhall (0070165)

Thomas W. Connors (0007226)
Kyle Wenning (0101391)
Mendenhall Law Group
190 North Union St., Suite 201
Akron, OH 44304
Phone: (330) 535-9160
warner@warnermendenhall.com
tconnors@warnermendenhall.com
kyle@warnermendenhall.com

Attorneys for Plaintiffs

DAVID A. YOST
ATTORNEY GENERAL OF OHIO

By: /s/ Ali Razzaghi

0135351.0752286 4864-8493-0331v8

17

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 EXHIBIT A

E-FILED 04/25/2022 05:11 PM / CONFIRMATION 1182551 / A 2104238 / JUDGE GHIZ / COMMON PLEAS DIVISION / REPL
 April 21, 2022
Dear Faculty and Staff,

In response to the continuously evolving COVID-19 developments, the university is

amending its COVID-19 practices. Beginning with the 2022 summer term, the university no
longer requires but strongly recommends faculty, staff and students receive COVID-19
vaccines. It is important to note that the university will continue to consult with medical and
public health experts and may change our responses as needed.

According to the CDC, up-to-date vaccination, which includes boosters, is generally the
most effective way to protect oneself and others from contracting COVID-19. In particular,
students in residential housing are strongly encouraged to get COVID-19 vaccines and
booster doses. Getting a vaccine is quick and easy and appointments can be made at
locations on and off campus.

Members of the UC community who work and learn at sites with independent COVID-19
vaccination requirements (e.g., hospitals, clinical sites, schools) may be required to comply
with requirements pertaining to those sites. Non-compliance may prevent one from fulfilling
one’s academic and professional objectives.

As a reminder, members of our community may choose to continue using facial masks,
and we encourage everyone to support and respect those who choose to do so.

E-FILED 04/25/2022 05:11 PM / CONFIRMATION 1182551 / A 2104238 / JUDGE GHIZ / COMMON PLEAS DIVISION / REPL
 Dustin Calhoun, MD Valerio Ferme, PhD
Chief Medical Preparedness Officer Executive Vice President for
Academic Affairs and Provost

UC Provost | University of Cincinnati , Cincinnati , OH 45221

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E-FILED 04/25/2022 05:11 PM / CONFIRMATION 1182551 / A 2104238 / JUDGE GHIZ / COMMON PLEAS DIVISION / REPL