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Judge denies CDC request to hold off on Conditional Sail Order injunction

In:
07Jul2021
By: 
Matt Hochberg

A federal judge has denied the U.S. Centers for Disease Control and Prevention’s (CDC) request to wait on eliminating the Conditional Sail Order (CSO) while the appeal process takes place.

On Tuesday, the CDC appealed the decision for a preliminary injunction against the CDC in allowing the CSO to be waived for Florida ports. The CDC also wanted the injunction to be stayed before it goes into effect on July 18.

Judge Steven D. Merryday reiterated his feelings in a three page response to the CDC's request for a stay, saying the CDC had exceeded its authority, "a stay that would serve to extend the unwarranted, unprecedented, and injurious exercise of governmental power by one person, the Director of CDC — is DENIED."

The Judge actually bolded and put the entire word "denied' in capital letters.

Judge Merryday went on to say that his conclusion is the CDC can show no factor that outweighs the need to conclude an unwarranted and unprecedented exercise of governmental power.

He also called out the CDC's claim that their actions are about protecting the public health, "this action is not about what health precautions against COVID-19 are necessary or helpful aboard a cruise ship; this action is about the use and misuse of governmental power."

As a result, the CSO will be stopped by order of the court at 12:01 a.m. EDT on JULY 18, 2021. At that time, the CSO the measures promulgated under the conditional sailing order will become a recommendation or guideline, and not be required.

Why the CDC isn't getting its way

Judge Merryday took some time in his decision to outline the reasons why he is not granting the CDC a stay during the appeal.

It boils down to a few key issues for the judge:

  1. CDC remains dismissive of the requirements of the Administrative Procedure Act,
  2. CDC remains dismissive of the manifest disjunction between the statute granting CDC authority and the authority CDC purports to exercise over the cruise industry
  3. CDC remains dismissive of state and local health regulation and dismissive of the cruise industry’s self-regulation
  4. CDC remains dismissive of successful cruise ship operation elsewhere in the world

He was also surprised the CDC did not want to take an opportunity to work on an alternative to the CSO, which was offered as part of the judge's original decision.

Cruise industry supporters will take solace in the words chosen by Judge Merryday, which paints the CDC in an unfriendly light as they squirm to find a way to get a favorable outcome.

Although CDC invariably garnishes the argument with dire prospects of “transmission” of COVID-19 aboard a cruise vessel, these dark allusions dismiss state and local health authorities, the industry’s self-regulation, and the thorough and costly preparations and accommodations by all concerned to avoid “transmission” and to confine and control the “transmission,” if one occurs. In other words, CDC can show no factor that outweighs the need to conclude an unwarranted and unprecedented exercise of governmental power.