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State of Florida Sues CDC Over Cruise Shut Down


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I'd started a lengthy legal reply, but @Matt's article sums it up really well. Basically, The Alaska Tourism Restoration Act requires the Alaskan cruise ships to have a valid Conditional Sailing Certificate from CDC before being allowed to sail. So the CDC argues, by requiring such a certificate, Congress has provided recognition and tacit approval of the larger CSO. By default, that would also make it the holding law for other cruises. Florida disagrees with that interpretation. 

While I have my own opinion on required vaccines and such, I'm just ready for AN answer, one way or the other, so cruise lines know what they have to work with. Required vaccines? Sure. Masks in public areas? Eh, not my favorite, but I'll suck it up. Mandatory hokey pokey before entering Windjammer? Put my right foot in and shake it all about, baby. I'm just ready to get on a ship again. 

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14 minutes ago, WesKinetic said:

I'd started a lengthy legal reply, but @Matt's article sums it up really well. Basically, The Alaska Tourism Restoration Act requires the Alaskan cruise ships to have a valid Conditional Sailing Certificate from CDC before being allowed to sail. So the CDC argues, by requiring such a certificate, Congress has provided recognition and tacit approval of the larger CSO. By default, that would also make it the holding law for other cruises. Florida disagrees with that interpretation. 

Nice loophole attempt, it might work, but I would imagine Florida could easily refute their assertion that the mention of an artifact of an unmentioned entity does not tacitly ratify that entity.

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8 minutes ago, smokeybandit said:

Nice loophole attempt, it might work, but I would imagine Florida could easily refute their assertion that the mention of an artifact of an entity does not tacitly ratify that entity.

Agreed. I think it's one of those legal tactics where you throw every argument you have at the wall and see what sticks. Sometimes that works, sometimes it doesn't. Will be interesting to see FL's official response. 

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8 minutes ago, smokeybandit said:

And what about the fact the Alaska law was enacted long after the lawsuit was filed?

The CDC says the Alaska Tourism Recovery Act is based on the CSO. 

Bill text

Quote

has been issued, operates in accordance with, and retains a COVID–19 Conditional Sailing Certificate of the Centers for Disease Control and Prevention

So the CDC's logic is that if the CSO disappears, so does ATRA.

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But the bill doesn't mention the CSO. Just refers to the CSC which is an artifact of the CSO.

 

The case they reference (Thomas vs. Network Solutions) references a section of the 1998 Supplemental Appropriations and Rescissions Act which is very specific to ratification of the defendant's argument. It's not a passing mention like is in the ATRA in which the CDC isn't part of like Network Solutions is in the 1998 SARA

 

image.png.9530702ad158786cbc27f07351bdb578.png

 

 

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I've had some time to digest what has transpired - limited to what the public can view on the Court's docket. I'll try to summarize. I note that Matt has written a piece on the front page that covers some of this. I'll try to contextualize it in a time line from the court's docket starting when the case was referred to mediation:

Merryday punted the law suit to mediation.

President Biden signed into law a bill that allowed cruise ships to skip the Jones act which requires foreign flagged vessels departing from US ports to make a port call in a foreign port. As it applies to Alaska cruising, that would be a Canadian port. There is a provision in the Alaska bill that states cruise ships cruising under the enacted law to Alaska must obtain a Conditional Sailing Certificate from the CDC.

Today, Alaska has asked to join the FL law suit as an intervener -the entry into a lawsuit by a third party into an existing civil case who was not named as an original party but has a personal stake in the outcome. You'll recall that Texas also filed as an intervener early on and joined the law suit as a claimant. Alaska's argument contained in it's filing today questions what the provision in the Alaska bill for the CSC actually means and CDC's authority to require compliance with the CSO anyway.

HHS's/CDC's lawyers filed a response claiming that since Biden signed the Alaska Cruising bill into law , including the provision that Ships sailing to Alaska must obtain a CSC, that ipso-facto makes the CSC law and if the CSO is enjoined the Alaska cruise season will be effectively ended.

The Sun Sentinel reported this evening as I posted above - mediation appears to have ended.

Alaska's filing neatly out points out how the CDC has issued updates to their guidance almost weekly in response to the litigation and trying to keep ahead of it. Certainly that's their right but it does make them out to be the clown show we have come to know that it is.

I still hold that FL will not prevail but it seems to me their chances of winning their case have improved because of the CDC's unjustifiable delays in issuing guidance (pointed out in the Alaska filing) and, in general, their clown show trying to update guidance based on arguments that have been made during litigation. It's helped that Alaska has entered into FL's law suit along with Texas.

Anyway, it's gotten complicated and hard to follow. I'm not sure I've got the time line straight and put all today' s news into context, but I tried. I've listed in order the filings that explain in greater detail what I posted above. I have no idea when Merryday will rule but I don't think it will be long.

It's going to be a cluster for the cruise lines if the CSO is ruled unenforceable. That it might be, might explain why the cruise lines appear to have been holding back on restarts, the ships that might restart are only a few and guidance on what to expect on board has been sparse. We've all speculated that behind the scenes they know a lot more about what's going on than we do.

Alaska files as an intervener:  

https://www.courtlistener.com/docket/59804600/68/state-of-florida-v-becerra/

Florida explains their position on the above request and the CDC's response: 

https://www.courtlistener.com/docket/59804600/69/state-of-florida-v-becerra/

CDC's bewildering claim that when Biden signed the Alaska bill into law it made the CSO a law:

https://www.courtlistener.com/docket/59804600/67/state-of-florida-v-becerra/

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16 minutes ago, JeffB said:

I've had some time to digest what has transpired - limited to what the public can view on the Court's docket. I'll try to summarize. I note that Matt has written a piece on the front page that covers some of this. I'll try to contextualize it in a time line from the court's docket starting when the case was referred to mediation:

Merryday punted the law suit to mediation.

President Biden signed into law a bill that allowed cruise ships to skip the Jones act which requires foreign flagged vessels departing from US ports to make a port call in a foreign port. As it applies to Alaska cruising, that would be a Canadian port. There is a provision in the Alaska bill that states cruise ships cruising under the enacted law to Alaska must obtain a Conditional Sailing Certificate from the CDC.

Today, Alaska has asked to join the FL law suit as an intervener -the entry into a lawsuit by a third party into an existing civil case who was not named as an original party but has a personal stake in the outcome. You'll recall that Texas also filed as an intervener early on and joined the law suit as a claimant. Alaska's argument contained in it's filing today questions what the provision in the Alaska bill for the CSC actually means and CDC's authority to require compliance with the CSO anyway.

HHS's/CDC's lawyers filed a response claiming that since Biden signed the Alaska Cruising bill into law , including the provision that Ships sailing to Alaska must obtain a CSC, that ipso-facto makes the CSC law and if the CSO is enjoined the Alaska cruise season will be effectively ended.

The Sun Sentinel reported this evening as I posted above - mediation appears to have ended.

Alaska's filing neatly points out points out how the CDC has issued updates to their guidance almost weekly in response to the litigation and trying to keep ahead of it. Certainly that's their right but it does make them out to be the clown show we have come to know that it is.

I still hold that FL will not prevail but it seems to me their chances of winning their case have improved because of the CDC's unjustifiable delays in issuing guidance (pointed out in the Alaska filing) and, in general, their clown show trying to update guidance based on arguments that have been made during litigation. It's helped that Alaska has entered into FL's law suit along with Texas.

Anyway, it's gotten complicated and hard to follow. I'm not sure I've got the time line straight and put all today' s news into context, but I tried. I've listed in order the filings that explain in greater detail what I posted above. I have no idea when Merryday will rule but I don't think it will be long.

It's going to be a cluster for the cruise lines if the CSO is ruled unenforceable. That it might be, might explain why the cruise lines appear to have been holding back on restarts, the ships that might restart are only a few and guidance on what to expect on board has been sparse. We've all speculated that behind the scenes they know a lot more about what's going on than we do.

Alaska files as an intervener:  

https://www.courtlistener.com/docket/59804600/68/state-of-florida-v-becerra/

Florida explains their position on the above request and the CDC's response: 

https://www.courtlistener.com/docket/59804600/69/state-of-florida-v-becerra/

CDC's bewildering claim that when Biden signed the Alaska bill into law it made the CSO a law:

https://www.courtlistener.com/docket/59804600/67/state-of-florida-v-becerra/

Thanks for keeping us all up to date on this!

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9 hours ago, JeffB said:

I've had some time to digest what has transpired - limited to what the public can view on the Court's docket. I'll try to summarize. I note that Matt has written a piece on the front page that covers some of this. I'll try to contextualize it in a time line from the court's docket starting when the case was referred to mediation:

Thank you for the update and helping us all to understand what it going on.

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9 minutes ago, jticarruthers said:

I think this is the key point that unfortunately means  this is just going to keep going indefinitely as they keep pulling more clowns out of the car.

The "clown show" serves to demonstrate how big government fosters bureaucratic incompetence. While I have no doubt the CDC employs very smart people, the organization itself is so large and so unwieldy that it is simply not agile enough to effectively deal with the risk of SARS2 on a cruise ship. At this point, the CSO has been overcome by events - namely vaccine effectiveness. The complexity of it is unnecessary. If you can understand what's in the CDC's web site that deals with cruise ships, I want to talk to you. It is enormously and unnecessarily complicated, spread out over dozens of pages - a patch work project of utter confusion and contradiction. 

I'd argue parts of of the CSO - when you can locate them -  are decent - I don't have a problem with those parts. Expanding the VSP, for example, to increase measures to mitigate airborne viruses like SARS2 are useful. The entire process involved in getting the Conditional Sailing Certificate is absurd. It is here that as vaccine became widely available and distributed that many requirements of the CSO could have been eliminated but, Nope. As posted above, what we've seen is glacial incrementalism - much of it adding more layers of complexity, some of it contradictory and creating confusion - in response to oral arguments presented in FL's law suit. This is our CDC. Shameful.    

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I am still surprised that anyone thought the lawsuit would be resolved in a timely manner. 

So, what next? Its kicked back to the Judge since mediation wasnt successful, as if anyone thought it would be, and then we wait another week for his ruling?

By the time this is finally settled, the result will be irrelevant. Unless, of course the CSO is completed lifted, which is not going to happen at this point

AND, this lawsuit just gave another excuse for Royal to delay announcements on their July sailings

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Regardless of how the lawsuit plays out, I'm convinced that much of the progress that has been made with the CDC is a direct result of the CDC trying to stay ahead of the lawsuit so they can claim it is unnecessary.  In other words, the lawsuit is already having the desired effect of getting cruising started. 

If the lawsuit hadn't happened, I don't think the CDC would have budged and we'd still be looking at November for the earliest possible start date.

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10 minutes ago, steverk said:

Regardless of how the lawsuit plays out, I'm convinced that much of the progress that has been made with the CDC is a direct result of the CDC trying to stay ahead of the lawsuit so they can claim it is unnecessary.  In other words, the lawsuit is already having the desired effect of getting cruising started. 

If the lawsuit hadn't happened, I don't think the CDC would have budged and we'd still be looking at November for the earliest possible start date.

Valid point. Something had to happen to spur the CDC to make the changes that they have

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15 minutes ago, steverk said:

Regardless of how the lawsuit plays out, I'm convinced that much of the progress that has been made with the CDC is a direct result of the CDC trying to stay ahead of the lawsuit so they can claim it is unnecessary.  In other words, the lawsuit is already having the desired effect of getting cruising started. 

If the lawsuit hadn't happened, I don't think the CDC would have budged and we'd still be looking at November for the earliest possible start date.

I agree this has spurred the CDC into action. I was afraid before this that the CDC was going to extend the CSO. 

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17 minutes ago, UNCFanatik said:

Valid point. Something had to happen to spur the CDC to make the changes that they have

It's not just the FL lawsuit. It is a host of pressures from various quarters on the HHS/CDC. What is frustrating to me is that given the CSO's absurdity that these "smart" people with in the CDC haven't figured out a graceful way to back out of it. While the whole issue of the HHS's/CDC's approach to the pandemic has been questioned, it's absurd approach to the cruise industry and the risk of outbreaks on cruise ships is so obviously flawed, it stuns me that congressional inquiry and action isn't ongoing.

When I think about it, nothing new, actually. On multiple issues not related to cruising legislative action from the federal level gets mired in politics and other priorities. It's easier for politicians to punt to the courts and hope a federal judge sorts this out. In case you haven't noticed for over a decade, this has been the modus operandi of our elected officials. It's not a good thing.

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15 minutes ago, JeffB said:

It's not just the FL lawsuit. It is a host of pressures from various quarters on the HHS/CDC. What is frustrating to me is that given the CSO's absurdity that these "smart" people with in the CDC haven't figured out a graceful way to back out of it. While the whole issue of the HHS's/CDC's approach to the pandemic has been questioned, it's absurd approach to the cruise industry and the risk of outbreaks on cruise ships is so obviously flawed, it stuns me that congressional inquiry and action isn't ongoing.

When I think about it, nothing new, actually. On multiple issues not related to cruising legislative action from the federal level gets mired in politics and other priorities. It's easier for politicians to punt to the courts and hope a federal judge sorts this out. In case you haven't noticed for over a decade, this has been the modus operandi of our elected officials. It's not a good thing.

I fully agree. The CSO should have been dropped in May at the latest as vaccinations were on the rise. 

It will be interesting to see if the PHE which was renewed in April will be renewed again in July. Excuse my ignorance, but if the PHE is lifted will that mean the CSO by default will be lifted or two separate matters?

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9 minutes ago, UNCFanatik said:

I fully agree. The CSO should have been dropped in May at the latest as vaccinations were on the rise. 

It will be interesting to see if the PHE which was renewed in April will be renewed again in July. Excuse my ignorance, but if the PHE is lifted will that mean the CSO by default will be lifted or two separate matters?

It is my understanding (from the La Lido Loca youtube channel) that the CDC had to have a PHE in order to have the authority to issue the CSO.  Therefore, if the PHE goes away, so goes the CSO.

This leads to another interesting question that is above my pay grade.  The CDC has argued in court that the law allowing sailing to Alaska depends on the CSO. So if the PHE goes away, the CSO goes away. Does that mean no sailing to Alaska? Surely that wasn't the intent of Congress when they passed the law!

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12 minutes ago, dv70 said:

From the text of the CSO:

image.png.b22fbc56fea0efff5ee66590a18a7342.png

 

So, presumably if the Public Health Emergency declaration is allowed to expire, so too does the CSO?

 

Thats not likely to happen anytime soon.  It is the basis for a lot of federal funding and programs related to Covid 19, including the vaccination program.

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10 minutes ago, steverk said:

It is my understanding (from the La Lido Loca youtube channel) that the CDC had to have a PHE in order to have the authority to issue the CSO.  Therefore, if the PHE goes away, so goes the CSO.

This leads to another interesting question that is above my pay grade.  The CDC has argued in court that the law allowing sailing to Alaska depends on the CSO. So if the PHE goes away, the CSO goes away. Does that mean no sailing to Alaska? Surely that wasn't the intent of Congress when they passed the law!

That's a legit question and one that is raised by the HHS/CDC attorneys in one of their filings. They claim just that. FL's reply in a subsequent filing calls that claim absurd. And, no, Congress did not intend to define the CSO as a law. As pointed out in a FL filing to make the CSO lawful would require separate legislative action. OTH, that the claim is made by HHS/CDC attorneys leaves it to Merryday to rule on that claim - legally I think it is weak not to mention it makes the CDC look foolish.

Our collective view that if the PHE ends, the CSO ends is probably correct. Like @wordell1I don't see that happening in the short term though. The US will probably go along with the WHO and we're along way from the end of a global PHE. 

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13 minutes ago, nate91 said:

Now the judge will have to make a decision. Anyone know any ETA on this? I saw that Royal expected it soon...soon has kind of become my least favorite word in the last year. ? 

Soon...As in before the next century! ?

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27 minutes ago, JasonOasis said:

This is absolutely ridiculous that these government agencies can't come to any type of agreement that gives this industry a green light.

You know how these government agencies would come to agreement and give the industry a green light?   I think it's very simple!   Give the people a choice to be vaccinated or not!   They know it can be done on a ship, but one side always has to butt heads with the other.  So Sad.   

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Not to start a conspiracy theory, but I wonder if the cruise lines are not taking advantage of the "no test" cruises so as not to weaken this case, because if they were able to cruise under the existing rules, it would weaken the economic impact argument.

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1 hour ago, MrMarc said:

Not to start a conspiracy theory, but I wonder if the cruise lines are not taking advantage of the "no test" cruises so as not to weaken this case, because if they were able to cruise under the existing rules, it would weaken the economic impact argument.

I think it’s more likely because (according to today’s White House briefing) only 52% of American adults are fully vaccinated with only 63% have had even 1 dose.  it’s not even approved in children under 12.  I looked but am struggling to find vaccination data on teens but Missouri today reported that only 13% of teens 12-15 had received even 1 dose and they’re “hitting a wall” vaccinating additional. I know several families, including mine, where the adults are fully vaccinated but are either not vaccinating their teens or taking a “wait and see” approach especially after last week’s Israeli reports linking the vaccine to higher rates of myocarditis in teenage males.  I think fully vaccinated cruises just aren’t going to be feasible especially for cruise lines servicing family markets. 
 

edited to add:  just found it 2.5M of 17M 12-15 vaccinated 1st dose as of 5 days ago, so 15%

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We may be thinking about vaccines the wrong way just like most, and even the experts, thought as the pandemic burst onto the scene that everything and everyone needs to be locked down. Well, that was wrong headed thinking for a number of reasons that have become more and more apparent as time passes and data gets refined....... not everyone needed to get locked down to mitigate the pandemic.

Likewise, not everyone needs to get vaccinated to control the pandemic. SARS2 will never be eradicated and it is a fools errand to try to do that by vaccinating everyone. We are not trying to obtain zero risk of getting infected. We should be trying to control it so that we can medically deal with people who will get infected reducing the risk of serious illness and death.

The data:

  • Death rates and hospitalization rates have plummeted (regional exceptions pertain - I'll get to that). What that means is that the vaccines, even with a global average of around 30-40% receiving at least one jab, are more effective in preventing serious illness and death than experts thought they would be.
  • Death rates in the US from COVID are very close to pre-SARS2 pandemic death rates experienced from seasonal influenza.
  • New cases of COVID have decreased dramatically (regional exceptions). What this means is that vaccines slow, do not stop, transmission even at the low vaccination rates some regions, US states and countries are experiencing.
  • It is important to remember that only a small portion of the word's population (3-5%) is at risk for serious illness or death. The rest may get flu like symptoms but can essentially go about life normally ...... that reality was completely lost early in the pandemic and catastrophic economic and social damage have been wrought because of that.
  • As more people get vaccinated R0 (R naught) for that population trends well below 1.0. Remember that metric? It was king as a measure of "dire consequences" way back then when the virus was spreading rapidly. The media used it incessantly - above 1.0, the virus is spreading; below 1.0 it is receding and therefore controlled. I don't believe a single US state or county in the US has an R(0) > 1.0 - its not even reported any longer for that reason.
  • Another less used metric these days, % positive, was also used to scare people. At it's height, some regions/states had % positives ranging from 10-20%. It's not scary anymore so the media doesn't report it.  Below 5% is considered as an indicator that the virus is not spreading/is controlled; below 3% is ideal. In the US and EU, it's hard to find a sustained % positive > 5%. In fact, many US counties don't have any new cases or deaths and haven't for weeks

Regional exceptions are occurring with the impact of disease burden in those regions varying. The primary underlying cause is a lack of vaccines and poor medical infrastructure in India, and countries in Asia and Latin America. We can't do much about that individually. Collective plans to deal with that are emerging. It will take time. Meanwhile populations in poor countries are going to suffer.  In the US, vaccine hesitancy plays a part in what amounts to small scale local outbreaks with little to no impact on disease burden (hospitalizations and deaths). We can live with this and that is the point.

My take is that at the point around 50-60% of any selected cohort becomes vaccinated, the virus will be controlled. Not eradicated but controlled to the extent that disease burden is nil. .  

IOW, we are already at the point where a return to normalcy in the US is underway. While vaccinating more people will help keep case numbers very low and the risk of serious illness and death right along with that, not getting that final 40% probably isn't all that necessary.  

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