Florida vs. CDC

[brentm77]

All:

I hope you don't mind me creating a thread for this lawsuit. I want to share updates as the case progresses, since it isn't being covered in detail in the news. While not a lot has happened yet, things are slowly starting to move. Having it in one thread will make it easy for those not interested in legal issues to skip my updates instead of clouding the cruise restart thread. Below is my initial summary of Florida's complaint, which I will follow with an update in a separate post in this thread.

The alleged facts from the state:

The state argues that in October 2020, the CDC said that cruising should resume sailing with the right precautions, because the benefit of opening outweighed the costs, but then it effectively just extended the cruising ban through its actions. The state outlines the history of the Conditional Sailing Order, and how it was made at a time when vaccines were unavailable and conditions were different. It quotes the CDC Director's congressional testimony on March 18, 2021, where he said he could not give a timeline for phase two of the order to proceed, arguing that, at the rate the CDC is moving, it will be at least November before cruising resumes. It then attacks the April 2 guidance as only being partially complete, not accounting for fully vaccinated ships, and treating the cruise industry differently than other travel industries.

Damages

For damages, it says the Florida ports will lose $420 million by July, and in 2019, Florida received $102.8 million in tax revenue from embarkations. 6,464 cruise industry employees have filed for unemployment. Cruise lines will move abroad if the order isn't lifted.

The legal theories:

1) The CDC exceeded its authority to lock down an entire industry for 1.5 years.

• The applicable regulation doesn't give the CDC the authority to suspend operation of cruise ships, much less every cruise ship in the country.
• The CDC can only act if it first determines a state's actions are insufficient to prevent the state-to-state, and foreign to U.S., spread of disease.
• The CDC's interpretation of the regulation for preventing spread is overlay broad, because the regulations lists illustrative examples of the types of things the CDC may do, and this action isn't of a similar nature.

2) Even if the CDC has the authority, its actions are arbitrary and capricious, and violate the Administrative Procedures Act (a federal law with specific technical requirements for the generation of regulations by federal agencies).

• The CDC didn't account for vaccines when it issued it's year-long order through November 2021, and it hasn't properly considered developments since.
• The CDC is ignoring successful foreign cruises or other lessons on how businesses can operate safely.
• The CDC hasn't addressed measures taken by ships (and states) and explained how they are inadequate, which is a prerequisite to its action.
• The CDC hasn't explained different treatment for cruising vs other industries - caselaw says the CDC must provide a reasoned explanation for treating similar situations differently.
• The CDC has failed to actually provide the four-phase framework to return passengers to cruising as required by its order.
• The APA required the CDC to provide notice and receive comments, which it didn't. The CDC is improperly using the "good cause" exception to avoid that step, especially this long after the pandemic started.

3) Violation of the U.S. Constitution's legislative power

• The Conditional Sailing Order constitutes an unconstitutional exercise of lawmaking by the executive branch - giving the CDC power to determine the rights of millions of citizens and the survival of countless businesses.

What the Sate Wants
The state wants the court to hold the Conditional Sailing Order unlawful, and a preliminary and permanent injunction, preventing the CDC from enforcing it, allowing the cruising industry to open with reasonable protocols.

 

[brentm77]

Timeline of major developments as of 4.27.21
4.8.21 Case was filed by Florida
4.20.21 Alaska filed its Motion to Intervene (see summary below)
4.22.21 Florida files its Motion for Preliminary Injunction (I wont' summarize, as it reiterates the same arguments as the Complaint)
4.26.21 Alaska files Leave to File Amicus Brief, and the proposed brief, in support of Florida's Motion for Preliminary Injunction
4.26.21 CDC and others file a Unopposed Motion for Extension of Time to Respond to Motion to Intervene - saying they will oppose Alaska's motion to intervene in time, but need to focus on the Motion for Preliminary Injunction - they have asked for an extension to respond until May 7. The court granted the extension.

The scheduling order currently gives the CDC until May 5 to respond to the Motion for Preliminary Injunction, with a hearing set for May 12 on the motion. While the judge may hint at the direction he will rule on the preliminary injunction, he probably won't issue an order for some time after the oral hearing.

 

[kathi]

Thank you for summarizing - very informative.

I find it ironic that the suit references vaccinations as a reason for the CDC to reassess the no sail order (something that is completely warranted) with FL banning the use of vaccine passports or companies (who receive state funding) being able to require vaccines as a condition of service. Something does not compute....

 

[brentm77]

Alaska's Motion to Intervene Argument Summary.

I have tried to focus on novel arguments not made by Florida, but there is some overlap:

• The CDC's orders directly affects the economic health of Alaska, its small port communities, and its citizens.
• Alaska's 2020 cruise season was canceled due to the No Sail Order.
• As of April 29, 2020, seven cruise ship operators (95% of cruise ships subject to the No Sail Order) had submitted the necessary response plan, and as of September 6, all five cruise ships operators with ships remaining in U.S. waters had submitted response plans that were "complete, accurate, and acknowledged."
• On October 31, 2020, the Conditional Sail Order was issued, promising phased resumption of cruising, and on April 2, 2021, the CDC issued technical guidance for Phase 2a of its phased approach. Alaska then outlines the extensive requirements contained in the technical guidance (medical facility contracts, housing contracts, emergency service contracts, etc.)
• The CDC has yet to issue the guidance for Phase 2b. Once it does, it will be at least a 90-day process for a cruise ship operator to complete a simulated voyage and obtain a conditional sailing certificate.
• Alaska's cruise seasons is limited to mid-May to early October. Unless the CDC changes its requirements, it will be imposable for large-scale cruising to resume for any part of Alaska's cruise season. And, given the CDC’s current pace for issuing its technical guidance and the lead times necessary to arrange and market cruises, the CDC’s action may jeopardize the 2022 cruise season as well.
• Alaska is particularly harmed by ending cruising. Small towns are almost entirely reliable on the income generated by tourism. Alaska lost 90.3 million in tourism revenue in 2020 and will lose more if cruising doesn't resume in 2021. Port and cruise line related communities lost 22,297 jobs (worth $305.7 in lost wages). Alaska's unemployment reserve was depleted, with $29.8 of the depletion directly attributable to the cruise industry. All in, the sate has lost over one billion dollars due to the canceling of the 2020 season.
• 160,000 cruise ships passengers would have visited last summer. And shutting down cruising won't affect just cruising tourism, because many small hotels are kept open by cruise ship passengers staying an average of two nights in some towns, and if those hotels don't survive, other tourism will be affected.
• Alaska repeats the same arguments as Florida (see summary above) as to why the CDC has overstepped its authority, didn't follow procedure, etc.
• The remainder of the brief is devoted to why Alaska has the legal right to join the lawsuit, and if the court holds it doesn't have a right, why the court should allow it to join the lawsuit under permissive joinder doctrine. As noted above, the CDC has signaled it will fight the joinder.

Alaska's Amicus Brief

Again, most of the brief is similar arguments as summarized above, but here are a few new tidbits:

• Alaska has more port of call vs. home port passenger visits than any other sates - in other words, its the destination, not the point of embarkation. Meaning, passengers shop, eat, drink, and pay for excursions there.
• In 2019, 60% of all visitors to Alaska came by cruise - 90% in Southeast Alaska.
• In 2019, Skagway has 1,000 residents, but 1,000,000 cruise ship passengers. 25% of the population has moved away now that cruising didn't resume.
• The Alaskan economy will lose 3 billion if cruising doesn't resume in 2021.
• When compared to Florida, Alaska is in a particularly impossible position for complying with the technical guidance. For a community like Skagway, due to its size, it wouldn't have the housing, medical facilities, and other infrastructure to comply with the technical guidance.
• Alaska has done particularly well with its Covid-19 response - its hospitalization and death rates are below average. Vaccination rates are high.
• Followed by the usual arguments about CDC exceeding its authority, not following procedure, infringing Alaska's sovereign state power, and the overly burdensome nature of the technical guidance. Alaska cites a case that found the CDC had exceeded its authority when its actions were "tantamount to creating a general federal police power." I will need to look that case up for the facts - but it appears to be just a district court case, meaning it wouldn't be controlling law for the Florida court.

 

[brentm77]

The judge assigned to the case is Steven Merryday.

Federal Judicial Service
District Judge, United States District Court for the Middle District of Florida
Nominated by George H.W. Bush on September 23, 1991, to a new seat authorized by 104 Stat. 5089. Confirmed by the Senate(link is external) on February 6, 1992, and received commission on February 10, 1992. Chief Judge, 2015–present.

Education
University of Florida, B.A., 1972
University of Florida Levin College of Law, J.D., 1975

Professional Career
Private Practice, Tampa, Florida, 1975–1992

I will need to do some research to understand his judicial temperament, but if leans conservative per his appointment, it will probably favor Alaska and Florida.

Small update: It looks like he is well known for blowing up a huge False Claims Act verdict, which strongly indicates he is willing to rule against the federal government.

 

[brentm77]

Thank you for summarizing - very informative.

I find it ironic that the suit references vaccinations as a reason for the CDC to reassess the no sail order (something that is completely warranted) with FL banning the use of vaccine passports or companies (who receive state funding) being able to require vaccines as a condition of service. Something does not compute....

You are exactly right. I won't be surprised if the CDC raises this issue in its opposition to the preliminary injunction.

 

[jrapps]

Thank you for putting this together. It will be very interesting to follow.

Tangentially related, I am worried about Desantis's executive order. I feel like the CDC and Cruise lines might come to an agreement where they can begin in Summer on vaccine-only cruises, and expand to no vaccine required by fall.

If the cruise lines fear the FL order, then they may dig their heels in against the CDC on Vaccines, and then they won't come to an agreement until Fall at the earliest. They'd end up in the same place either way.

 

[JWelch62]

Thank you for putting this together. It will be very interesting to follow.

Tangentially related, I am worried about Desantis's executive order. I feel like the CDC and Cruise lines might come to an agreement where they can begin in Summer on vaccine-only cruises, and expand to no vaccine required by fall.

If the cruise lines fear the FL order, then they may dig their heels in against the CDC on Vaccines, and then they won't come to an agreement until Fall at the earliest. They'd end up in the same place either way.

IANAL, and maybe @brentm77 can comment, but DeSantis' exec order only applies to companies that do business with the state, or get taxpayer funding. I am not sure that cruise lines, or most private businesses for that matter, are impacted.

 

[jrapps]

IANAL, and maybe @brentm77 can comment, but DeSantis' exec order only applies to companies that do business with the state, or get taxpayer funding. I am not sure that cruise lines, or most private businesses for that matter, are impacted.

While I agree, Desantis does not. After he signed the order, his office released this:

“The Governor’s Executive Order provides that businesses in Florida are prohibited from requiring patrons or customers to provide any documentation certifying COVID-19 vaccination or post-transmission recovery to gain access to, entry upon, or service from the business,” press secretary Cody McCloud said by email. “Therefore, the Executive Order prohibits cruise lines from requiring vaccine passports for their Florida operations.”

They came right out and singled out Cruises. Doesn't matter if it is enforceable or not may not be the point. If the management of the cruises feel that they don't want to be on the governors bad side, they wont push for vaccines.

 

[kathi]

It's worth observing that states can allow packed venues with no masks but cruising with precautions is still off the table. The current conditions to return to sail are just not tenable (and I assume they know it). What do you think is driving the agency to be so intractable?

 

[kathi]

While I agree, Desantis does not. After he signed the order, his office released this:

“The Governor’s Executive Order provides that businesses in Florida are prohibited from requiring patrons or customers to provide any documentation certifying COVID-19 vaccination or post-transmission recovery to gain access to, entry upon, or service from the business,” press secretary Cody McCloud said by email. “Therefore, the Executive Order prohibits cruise lines from requiring vaccine passports for their Florida operations.”

They came right out and singled out Cruises. Doesn't matter if it is enforceable or not may not be the point. If the management of the cruises feel that they don't want to be on the governors bad side, they wont push for vaccines.

Seems to be DeSantis can't decide if he wants people back to work in the cruise industry or wants to take a stand about vaccines. That is going to be a weakness for him in the suit, I'm sure.

 

[JWelch62]

While I agree, Desantis does not. After he signed the order, his office released this:

“The Governor’s Executive Order provides that businesses in Florida are prohibited from requiring patrons or customers to provide any documentation certifying COVID-19 vaccination or post-transmission recovery to gain access to, entry upon, or service from the business,” press secretary Cody McCloud said by email. “Therefore, the Executive Order prohibits cruise lines from requiring vaccine passports for their Florida operations.”

They came right out and singled out Cruises. Doesn't matter if it is enforceable or not may not be the point. If the management of the cruises feel that they don't want to be on the governors bad side, they wont push for vaccines.

Thanks, I hadn't seen this quote. One thing I thought about after posting (always that way) is that since the cruise lines rent dock space from the port authority that could be construed as falling under the exec order.

EDIT: Another thing that complicates matters is the requirements at the destination ports. It's not unlikely that certain popular ports would require proof of vaccination before allowing debarkation.

 

[jrapps]

Another thing that complicates matters is the requirements at the destination ports. It's not unlikely that certain popular ports would require proof of vaccination before allowing debarkation.

Which is EXACTLY why I think this is bigger than the state suing the CDC. Between the CDC, Desantis, Cruise Lines, and foreign ports, you have so many opposing forces, the easiest thing is to do nothing, hence the long drawn out process we have now.

 

[tvguy]

It's worth observing that states can allow packed venues with no masks but cruising with precautions is still off the table. The current conditions to return to sail are just not tenable (and I assume they know it). What do you think is driving the agency to be so intractable?

Probably because states have zero authority of cruises because other than docking and stopping in some states, cruises are out of state jurisdiction.
The current conditions are tenable given the world spikes in covid. It would be different if the ships were operating just in Florida waters and ports.

 

[kathi]

Have you read the CDC conditions to return to sailing? Some just can't be met - as Alaska pointed out. I'm not saying we shouldn't have precautions, but the CDC requirements are not consistent with the current science.

 

[cvjw]

Thanks, I hadn't seen this quote. One thing I thought about after posting (always that way) is that since the cruise lines rent dock space from the port authority that could be construed as falling under the exec order.

EDIT: Another thing that complicates matters is the requirements at the destination ports. It's not unlikely that certain popular ports would require proof of vaccination before allowing debarkation.

Have you taken a look at all the other cruise lines sailing this summer and fall from the Caribbean and Bahamas? The list is very long. All are stopping at various Caribbean ports. All must have already worked out the details with those ports. This shows that it can be done and disney ships will have plenty of open ports to stop at when they start sailing again. If the CDC ever allows them too.

DCL just needs to jump ship like all the other cruise lines and sail out of the Bahamas or Caribbean. Time to get the ships back to sailing!

 

[tvguy]

Have you read the CDC conditions to return to sailing? Some just can't be met - as Alaska pointed out. I'm not saying we shouldn't have precautions, but the CDC requirements are not consistent with the current science.

I have. Problem is cruise lines are juggling the CDC rules, with the rules in ports they want to go to. CDC is pretty generous compared to say, Canada, who has flat out said, "no ships over 100 passengers until March 2022"

 

[jerry557]

Seems to be DeSantis can't decide if he wants people back to work in the cruise industry or wants to take a stand about vaccines. That is going to be a weakness for him in the suit, I'm sure.

Not really because he’ll argue you don’t need 100% vaccinated ship for spread to be minimized. At the current rate of vaccination, enough people will have been vaccinated voluntarily by the time of restart for there not to be a super spreader situation.

If they are waiting for absolute zero spread, then they won’t be sailing from the US at all this year anyway. CDC won’t let them.

 

[mevelandry]

I'm very curious to see what will come out of this. Based on observations (in Canada), judges usually rule out that public health prevails over everything else.

That being said, the costs of legal fees can sometimes push entities to try to reach settlement instead of going to court.

To this day, I don't understand why the CDC won't provide a specific list of recommendations (to which cruise lines could reply by accepting those rules or not). And I feel like the cruise lines won't present any plan until the CDC doesn't define what they are looking for. This is all very frustrating.

 

[ford91exploder]

It's worth observing that states can allow packed venues with no masks but cruising with precautions is still off the table. The current conditions to return to sail are just not tenable (and I assume they know it). What do you think is driving the agency to be so intractable?

It's like any other government organization one gets ahead by NOT making decisions which can be held against you, So the wise career move is to make no decision and slow walk necessary guidance till the target simply gives up or goes out of business and since you have no stains on your record you get promoted the next time the promotions board meets for your agency. Note this is extremely true for the Govt. Senior Executive Service, It's still somewhat true for the GS workers who actually HAVE to make decisions in their day to day operations.

Most of what's happening to the cruise lines being done at the behest of the political appointee/Senior Executive Service level and they just don't care as they are effectively bulletproof unless the president steps in (as was done with the VA).