Florida vs. CDC

[jerry557]

Maybe this is a little conspiracy theory-ish, but I think there are people in our government and elsewhere that would love to destroy the cruise industry. The CDC never liked it. They thought cruise ships spread disease too easily. There are some environmentalists that think they pollute the oceans and contribute to climate change. And some people criticize them for bad labor practices. They get a lot of criticism for registering with countries like Panama and the Bahamas to evade taxes and port laws. Politically speaking, the cruise lines are being treated like foreign companies. Very low priority.

My point is that the cruise lines have made numerous enemies over the years who are right now in no hurry to help them.

 

[Doofenshmirtz513]

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.

Isn't the False Claims Act one of the laws that lets individuals bring suit on behalf of the government for violations and then keep a piece of the pie? So blowing up a False Claims Act verdict isn't that much of a ruling against the government (although the government would have recovered money as well).

 

[Doofenshmirtz513]

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.

This is an interesting set of arguments. Winning on the arguments in 2 would likely just result in a directive for the CDC to provide further proceedings or explanations and may not result in an immediate change in the status quo. 1 seems like the arguments most likely to result in a quick win if the CDC exceeded its statutory authority. 3 seems like a not-well-developed long shot.

I'm also not sure the chances are very good of winning a preliminary injunction, as the thing being lost here is money, which generally can't support a PI, right (I usually deal with stays of orders, not PIs, so I may be confusing the relevant standards). But maybe the harms are broad enough that they can clear that hurdle.

 

[Doofenshmirtz513]

Maybe this is a little conspiracy theory-ish, but I think there are people in our government and elsewhere that would love to destroy the cruise industry. The CDC never liked it. They thought cruise ships spread disease too easily. There are some environmentalists that think they pollute the oceans and contribute to climate change. And some people criticize them for bad labor practices. They get a lot of criticism for registering with countries like Panama and the Bahamas to evade taxes and port laws. Politically speaking, the cruise lines are being treated like foreign companies. Very low priority.

My point is that the cruise lines have made numerous enemies over the years who are right now in no hurry to help them.

Perhaps, but I'm not super convinced that the new administration leaving in place (and somewhat slow playing additional guidance under) an order issued by the prior administration is evidence of some conspiracy against the cruise lines. It would be easier to believe if the Biden administration had issued the order to start with. Although I do agree that the various efforts of cruise lines to avoid US law mean the government isn't going to make them a priority.

 

[Joe Brig]

Maybe this is a little conspiracy theory-ish, but I think there are people in our government and elsewhere that would love to destroy the cruise industry. The CDC never liked it. They thought cruise ships spread disease too easily. There are some environmentalists that think they pollute the oceans and contribute to climate change.

Definitely a possibility given that the CDC's YouTube channel has many videos on how Climate Change effects health.

 

[brentm77]

Isn't the False Claims Act one of the laws that lets individuals bring suit on behalf of the government for violations and then keep a piece of the pie? So blowing up a False Claims Act verdict isn't that much of a ruling against the government (although the government would have recovered money as well).

You are mostly right in your description. The claim can be brought by an individual, but it can also be brought directly by the government. And when it is brought by and individual, the biggest piece of the pie (75-85%) goes to the government. It is always a claim brought on the government's behalf for violations of federal law related to the government's procurement of products. The law goes back to the civil war when individuals were committing fraud by selling the Union crappy or fake goods.

Even when brought by an individual, the good claims are almost always pursued by the government and not the individual plaintiff who filed the original lawsuit. The government has a right to join the lawsuit, and usually does if it is a good one. Once they join, they essentially become the plaintiff and the original plaintiff does very little.

Now days, it is often used in the Medicaid/Medicare setting, where the government reimburses drugs or medical devices that it later claims it should not have reimbursed - for example, if the drug was promoted for off label use, or the pharmaceutical company bribed the doctors to use it. Blowing up a $350 million dollar win for the government, whether originally filed by an individuals or the government, is for sure a ruling against the government and somewhat rare for judges to do, as they usually defer to the government in my experience.

UPDATE: Surprisingly, the government did decline to intervene in the False Claims case, but I still see it as a ruling against the government, since his action took away hundreds of millions of dollars from the government. But it isn't nearly as strong of an indication of his willingness to stand up to the government as if the government had intervened like I had assumed. It does indicate he has a conservative judicial temperament, but it was a great catch on your part.

 

[JWelch62]

Fun fact, Lance Armstrong (US Cyclist) settled with the US Government in a False Claims Act suit initiated by former teammate Floyd Landis. He agreed to pay $5MM.

 

[brentm77]

This is an interesting set of arguments. Winning on the arguments in 2 would likely just result in a directive for the CDC to provide further proceedings or explanations and may not result in an immediate change in the status quo. 1 seems like the arguments most likely to result in a quick win if the CDC exceeded its statutory authority. 3 seems like a not-well-developed long shot.

I'm also not sure the chances are very good of winning a preliminary injunction, as the thing being lost here is money, which generally can't support a PI, right (I usually deal with stays of orders, not PIs, so I may be confusing the relevant standards). But maybe the harms are broad enough that they can clear that hurdle.

Here is the standard in federal court:

1) “that he is likely to succeed on the merits,” (2) “that he is likely to suffer irreparable harm in the absence of preliminary relief,” (3) “that the balance of equities tips in his favor,” and (4) “that an injunction is in the public interest.”

You are right that monetary damages are a difficult basis to use for a preliminary injunction. It isn't usually irreparable harm since the money can be paid back if the plaintiff wins.

Here is Florida's argument for irreparable harm:

And economic harm caused by federal agency action also establishes irreparable harm. These harms “cannot be undone through monetary remedies," . . . because the United States has sovereign immunity. Florida has suffered—and is likely to continue to suffer—hundreds of millions of dollars in economic harm, perhaps more. Since March 1, 2020, the Conditional Sailing Order has forced Florida to expend around $20 million in state unemployment benefits alone. . . Florida has also lost tens of millions of tax dollars, if not more, from cruise-passenger activities. . . And Florida’s ports have lost even more. . . And these numbers do not account for the full economic effect on Florida. Florida’s hotels, restaurants, gas stations, and many other industries benefit from would-be cruise passengers. . . Most pressing, the important summer cruising season is fast approaching, . . . and the cruise industry is ready to reopen, . . . If it does not reopen soon, cruise lines are considering relocating abroad—some already have. . . They may never come back.

In short, Florida says monetary damages can't be obtained from the United States, since it has sovereign immunity. It also points to the damage to non-parties to the lawsuit, which would have and secondary effect on the state of Florida. Finally, it points to the fact that cruise lines are leaving and may never come back, which seems like a good basis for irreparable harm to me.

P.S. The more I dig into the Motion for Preliminary Injunction, the more interesting it is. I can't wait to see the government's response, because I think Florida has laid out a good argument that the CDC doesn't have the statutory authority to do what it did. But it is hard to determine how misleading Florida's argument is without the response from a party who knows this area of law well. I will try to post a succinct summary of Florida's argument sometime in the next few days.

 

[Doofenshmirtz513]

You are mostly right in your description. The claim can be brought by an individual, but it can also be brought directly by the government. And when it is brought by and individual, the biggest piece of the pie (75-85%) goes to the government. It is always a claim brought on the government's behalf for violations of federal law related to the government's procurement of products. The law goes back to the civil war when individuals were committing fraud by selling the Union crappy or fake goods.

Even when brought by an individual, the good claims are almost always pursued by the government and not the individual plaintiff who filed the original lawsuit. The government has a right to join the lawsuit, and usually does if it is a good one. Once they join, they essentially become the plaintiff and the original plaintiff does very little.

Now days, it is often used in the Medicaid/Medicare setting, where the government reimburses drugs or medical devices that it later claims it should not have reimbursed - for example, if the drug was promoted for off label use, or the pharmaceutical company bribed the doctors to use it. Blowing up a $350 million dollar win for the government, whether originally filed by an individuals or the government, is for sure a ruling against the government and somewhat rare for judges to do, as they usually defer to the government in my experience.

UPDATE: Surprisingly, the government did decline to intervene in the False Claims case, but I still see it as a ruling against the government, since his action took away hundreds of millions of dollars from the government. But it isn't nearly as strong of an indication of his willingness to stand up to the government as if the government had intervened like I had assumed. It does indicate he has a conservative judicial temperament, but it was a great catch on your part.

I used to work with attorneys who did False Claims Act defense, with cases almost always brought by disgruntled former employees of government contractors looking to make a quick buck, so I have a bit of a jaded view of these things.

Thanks for pulling all of this. I, too, am looking forward to the U.S. government's response. Not that Florida would be this bad, but I have a proceeding right now where the other side claimed a government agency exceeded its statutory authority. But they were citing the wrong section of the statute.

 

[kathi]

This is all so fascinating. Thanks to the attorneys and other law professionals for providing context.

 

[sullivan.kscott]

What happens if the CDC response concedes, in a way, and allows cruising to resume from US ports in a manner similar to the Magic UK sailings, or RCI from the Caribbean?

Would cruise lines or individual port authorities then need to turn around and sue FL to reopen in those ports? Or does federal jurisdiction override state authority at border crossings? Mayor Dennings hinted at some of the murkiness when discussing airport social distancing today when updating county guidance, and FL recently preempted Key West in the legislative branch (though it didn’t go all the way to the gov’s desk).

This is all too fascinating for a non-lawyer!

 

[DCLMP]

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.

He wants to do both. He wants cruising to resume without vaccine mandates just like every other business in Florida.

 

[kathi]

He wants to do both. He wants cruising to resume without vaccine mandates just like every other business in Florida.

My point was that the law suit uses the availability and efficacy of vaccines as a reason to change the current CDC policy. That is contradictory to his policy and statements on vaccines for the state of FL. I suspect that will be used against him in court.

 

[DCLMP]

My point was that the law suit uses the availability and efficacy of vaccines as a reason to change the current CDC policy. That is contradictory to his policy and statements on vaccines for the state of FL. I suspect that will be used against him in court.

He’s not against the vaccines. He’s encouraging people to get them. He doesn’t believe in mandating them. There is nothing contradictory there.

 

[jrapps]

He’s not against the vaccines. He’s encouraging people to get them. He doesn’t believe in mandating them. There is nothing contradictory there.

It is contradictory. It's not just mandating that he is against. He is against private businesses using vaccine status as a means of denying service. Now regardless of where you fall politically on that issue, you can't have your cake and eat it too. Either you are for business to have the freedom to run their business as they see fit (and let capitalism decide if they survive), or you're for regulation. At this moment in time, legally you can only prevent a business from denying service to a protected class (race, religion, etc). Here in FL, there any many instances (including PUBLIC school) where vaccines are required. Why is this vaccine an exception? Is it perhaps because the Covid vaccine is under emergency authorization and not "fully approved." Maybe, maybe not. The executive order didn't say "you can't require a Covid vaccine UNTIL it is fully FDA approved." It says you can't require Covid vaccines. Period. Many of us in FL believe this to be nothing more than political theater. It isn't the citizen's privacy rights that Desantis is really pushing for, it's his 15min of fame. Keep him in the news, build his image for future elections. He may (or may not) have noble intentions, but this act makes things harder, not easier.

The contradiction here is when the lawsuit says "CDC policy is out of date because we now have vaccines" and at the same time say "You can't require a Covid vaccine". You can't have it both ways. If he wants to deny businesses from requiring a vaccine, fine he has the authority to pass that executive order (may be overturned via lawsuit, who knows) but you then don't cry foul when the CDC pushes back and says without vaccine requirements, ships can't sail. (edit) or worse, CDC says sure you can sail, but if you don't require vaccines then you have to follow these additional severe restrictions (masks, social distance, etc) that make the experience miserable and not worth the cost

 

[DCLMP]

It is contradictory. It's not just mandating that he is against. He is against private businesses using vaccine status as a means of denying service. Now regardless of where you fall politically on that issue, you can't have your cake and eat it too. Either you are for business to have the freedom to run their business as they see fit (and let capitalism decide if they survive), or you're for regulation. At this moment in time, legally you can only prevent a business from denying service to a protected class (race, religion, etc). Here in FL, there any many instances (including PUBLIC school) where vaccines are required. Why is this vaccine an exception? Is it perhaps because the Covid vaccine is under emergency authorization and not "fully approved." Maybe, maybe not. The executive order didn't say "you can't require a Covid vaccine UNTIL it is fully FDA approved." It says you can't require Covid vaccines. Period. Many of us in FL believe this to be nothing more than political theater. It isn't the citizen's privacy rights that Desantis is really pushing for, it's his 15min of fame. Keep him in the news, build his image for future elections. He may (or may not) have noble intentions, but this act makes things harder, not easier.

The contradiction here is when the lawsuit says "CDC policy is out of date because we now have vaccines" and at the same time say "You can't require a Covid vaccine". You can't have it both ways. If he wants to deny businesses from requiring a vaccine, fine he has the authority to pass that executive order (may be overturned via lawsuit, who knows) but you then don't cry foul when the CDC pushes back and says without vaccine requirements, ships can't sail. (edit) or worse, CDC says sure you can sail, but if you don't require vaccines then you have to follow these additional severe restrictions (masks, social distance, etc) that make the experience miserable and not worth the cost

The CDC cannot mandate vaccines.

 

[jrapps]

The CDC cannot mandate vaccines.

And Desantis can't prevent businesses from requiring vaccines.

You are probably right, but they CAN say If Cruise Lines choose to mandate vaccines, then they can relax other restrictions. It isn't requiring it, but they can definitely make DCL want to mandate it.

 

[Becky Mouse]

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.

That's a problem, though, when many cruises stop in other countries. Other countries are requiring proof of vaccination, and cruises often (usually?) stop in other countries. How can cruises continue from Florida if Florida won't allow them to check vaccination status, but the countries the cruise will stop at requires them? That was the problem people had from the governor's order from the beginning. People were worried that cruise companies would have to leave the state and that airlines wouldn't be able to fly internationally from Florida.

 

[jrapps]

How can cruises continue from Florida if Florida won't allow them to check vaccination status, but the countries the cruise will stop at requires them? That was the problem people had from the governor's order from the beginning.

So one has to wonder, does Desantis REALLY want cruises to start up again, or is his agenda just to pretend that he does, but make enough trouble with his executive order that the negotiations between the cruise lines and the CDC draw out, and then Desantis can point to the CDC as the "big bad government" agency is against cruising and hurting FL jobs. (stay in the news, come out looking the like the hero fighting for Floridians)...when in reality is is the governor's office that is the "big bad government" bureaucracy that is hurting FL jobs.

 

[DCLMP]

And Desantis can't prevent businesses from requiring vaccines.

You are probably right, but they CAN say If Cruise Lines choose to mandate vaccines, then they can relax other restrictions. It isn't requiring it, but they can definitely make DCL want to mandate it.

It’s the local and state governments that have mandated masks and other restrictions not the cdc. The CDC makes recommendations. Some states follow them and some don’t. Hopefully this all resolved in the lawsuit and the cdc is out of the picture.