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State of Florida Sues CDC Over Cruise Shut Down


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15 hours ago, danv3 said:

Judge Merryday is showing his hand.  He either expects the parties to resolve the dispute themselves or for cruises to restart and the lawsuit to be largely moot.  

Every day that passes decreases the likelihood of an injunction being issued.  

I partially agree....may very well be what they are doing.....but there is a big picture aspect to this.  Precedent can be set for the limits to what  the CDC can do with the cruise line industry (and others), and how they impose "guidance". Im hoping thats what we ultimately get from this.    

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1 hour ago, Matt said:

I think any judge would want the two parties to sort things out on their own. 

But I am surprised how long this has gone, and it makes me leery of a legal challenge to Florida's vaccine ban law that some are calling unconstitutional.  That may be the case, but the legal system will take a long time to ultimately come to that conclusion, if at all.

That two related law suits are pending - the one in FL v. CDC/HHS over the CSO and the one filed in Texas yesterday by hospital employees alleging they can't be forced to be vaccinated to remain employed at the hospital - is not going to stop the cruise lines from pressing ahead with scheduled/booked cruises from FL ports or even less likely they'll be interrupted by any of this, European and Asian ports. 

We have known for the last couple of weeks that the lines have been preparing for many contingencies and in the case of RCG (RCL & Celebrity) have plans with some flexibility. Both lines have been very careful to not release a host of detailed and specific health and safety protocols. They've been doing some publishing of them, e.g., both lines going to vaccinations strongly recommended instead of required and RCL and Celebrity appearing to take different approaches to that -  but there is always the rejoinder - "subject to change." 

I have Celebrity cruises booked in July from Athens, August from PEV and Barcelona in October. So far, I feel about as informed as is possible by Celebrity and I'm taking the position that I'm going to adjust to whatever. It's not easy as I am an obsessive planner. Just was notified that my Barcelona East Bound Trans-Lant in October has been moved up two weeks and with an itinerary change. I've already taken steps to make changes to insurance, hotel and tour reservations associated with that cruise. I didn't book air .... yet ..... but when I do, it will be with FlightsByCelebrity. 

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Motion Hearing: https://storage.courtlistener.com/recap/gov.uscourts.flmd.388773/gov.uscourts.flmd.388773.84.0.pdf

PROCEEDINGS: HEARING RE PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
(DOC. 9)

  • Court in session.
  • All parties are present in the courtroom and identified for the record.
  • The Court addresses, with plaintiff’s counsel, a statement from the Governor’s office regarding the mediation.
  • The plaintiff argues their response to defendants’ supplemental brief (Doc. 82).
  • Defense counsel argues their supplemental brief (Doc. 72).
  • Order to follow
  • Hearing concluded

TIME: 10:07 a.m.–11:03 a.m., 11:18 a.m.–12:01 p.m., 1:19 p.m.–2:34 p.m.
TOTAL: 2 hours, 54 minutes

 

 

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24 minutes ago, smokeybandit said:

Long summary of today's hearing.  Merryday was very prepared to call the bluff of the CDC when they used very outdated data or misleading studies to try to prove their case.

https://www.miamiherald.com/news/business/tourism-cruises/article252007683.html

It would be humorous if it wasn't so sad how inept the CDC is, and how their ineptitude has effected the country. 

Did the article say that...they're going back to mediation? (Since it worked so well the first time!)

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8 minutes ago, nate91 said:

It would be humorous if it wasn't so sad how inept the CDC is, and how their ineptitude has effected the country. 

Did the article say that...they're going back to mediation? (Since it worked so well the first time!)

 As with the initial hearing, held on May 12, U.S. Middle District of Florida Judge Steven D. Merryday issued no immediate ruling but said he would have a decision “soon.”

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13 hours ago, JeffB said:

There's a law suit in Texas filed by employees of a hospital in Texas challenging that hospital's authority to require them to remain employed. Governor Abbot's ban, like the Desantis ban is at issue. If that lawsuit fails and affirms the rights of businesses to require vaccinations, both Abbot and  Desantis will be left on an island with little likelihood that these bans will stand. I think the suit will be heard quickly and dismissed. Hard to say how Abbot, Desantis or cruise lines will act when that happens but I think whatever governments do, the trend for the lines has been and will be going forward to require vaccinations to sail and that will reappear as a requirement quickly. JMO.  

The best thing that can happen for the cruise industry is for both ban to be overturned in court.  then we can be back to sailing all ships from all ports just as soon as the can be staffed.

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21 hours ago, Matt said:

So we're back where we were on the first day of the court case where both sides wanted the judge to rule

Sort-of ....... as of yesterday, there were 85 motions from various parties logged on the court docket. If you've been following this thread you know they involve third parties entering Amicus briefs in support of the FL suit, objections to adding them from the defendants. requests to join the law suit (TX and Alaska) as co-complainants and objections from the defendants to such motions. There's also several technical filings involving court procedure that have no bearing on the arguments/facts of the case. The case has become complicated and you saw in Matt's posts above that Merryday has said, "there are a lot of moving parts ..... and I can only make one ruling."

This signals to me that FL has crossed all the thresholds for Merryday to rule (e.g. standing). That is something HHS/CDC has argued against .If you go back to the original claim that was filed by FL it was under Administrative Procedures and Agency Actions. That probably makes it possible for Merryday to consider a rather narrowly defined case that might not take not account the harm FL, TX and Alaska claim as substantial economic harm.  

At the initial filing, I felt FL had a very strong case from the arguments we saw in filed motions. To wit, FL was never given proper notice or consulted. In response HHS/CDC lawyers filed their motions pointing out they did do both of those things. I thought this was weak sauce because, well, the didn't. They just charged right in, considered doing something or nothing and without consultation with the state PH or transportation officials closed all FL ports to cruise ship traffic.

If that was it, FL wins. But it isn't and that became known to us as the motions and counter motions unfolded. HHS/CDDC claim that they acted within their authority given the PHE and granted in U.S.C. 42, section 245. The VSP is within those documents. I read all of it and at that point, felt the FL case had been weakened but still had life. Life came in the form of FL's response that cited the laws that regulate commerce within ports. It's here that I think a case can be made that the HHS/CDC didn't have the authority to do that without consulting both FL and it's involved agencies and the US Department of Commerce - a federal agency that should have been in on the CDC's decision to shut down legitimate commerce in the form of cruise ships.   

If this were a complete and accurate recap of both sides arguments, the CSO gets enjoined. But it's been pointed out to me that both the law and the spirit of the law help to inform a federal judges ruling. This is where I think it gets very complicated. I also think that as the case unfolded, even though the CDC was scrambling, they made a decent argument that the CSO is a reasonable path forward. We can argue the details but the spirit of the CSO has served a purpose and the cruise lines have complied. Timely? I don't think so and that equates to points in FL's scoreboard. Too arduous so as to make it as difficult as possible to get cruising started faster than the CDC wanted it to? Clearly it was They based this hesitancy to grant an unconditional restart of cruising, correctly defined as a potentially high risk of disease acceleration based on it's definition as a congregate setting. You can disagree with that, you can argue but, but, the Healthy Sail Panel!!!! Wasn't that just as good and much more workable?  The ultimate agency to green light the industry once the NSO was lifted is properly the CDC ...... back to the original question - did the CDC exceed it's authority in implementing the NSO? 

I can see Merryday's ruling going either way. Certainly, his ruling is going to contain questions regarding the clarity of the applicable laws. He'll write in the form of a question, to what extent does existing law grant the CDC authority in a PHE and opine it's not clear. He'll add clarifying vague laws to make them clear is the role of congress not his. I think based on the economic damage the NSO and subsequently the burdensome CSO wrought on the travel and leisure sector of the global economy, because it was so extensive, economic interests WILL come into play although HHS/CDC has worked hard to argue they shouldn't. What else might come up is an opinion that there should have been better oversight through cross agency consultation at the federal level and that isn't covered in the current law - at least not that I can find.

It's a tough case and I'm going to fence sit. Regardless the outcome, I think the cruise industry is well positioned to adapt to however Merryday rules.

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13 hours ago, JeffB said:

Sort-of ....... as of yesterday, there were 85 motions from various parties logged on the court docket. If you've been following this thread you know they involve third parties entering Amicus briefs in support of the FL suit, objections to adding them from the defendants. requests to join the law suit (TX and Alaska) as co-complainants and objections from the defendants to such motions. There's also several technical filings involving court procedure that have no bearing on the arguments/facts of the case. The case has become complicated and you saw in Matt's posts above that Merryday has said, "there are a lot of moving parts ..... and I can only make one ruling."

This signals to me that FL has crossed all the thresholds for Merryday to rule (e.g. standing). That is something HHS/CDC has argued against .If you go back to the original claim that was filed by FL it was under Administrative Procedures and Agency Actions. That probably makes it possible for Merryday to consider a rather narrowly defined case that might not take not account the harm FL, TX and Alaska claim as substantial economic harm.  

At the initial filing, I felt FL had a very strong case from the arguments we saw in filed motions. To wit, FL was never given proper notice or consulted. In response HHS/CDC lawyers filed their motions pointing out they did do both of those things. I thought this was weak sauce because, well, the didn't. They just charged right in, considered doing something or nothing and without consultation with the state PH or transportation officials closed all FL ports to cruise ship traffic.

If that was it, FL wins. But it isn't and that became known to us as the motions and counter motions unfolded. HHS/CDDC claim that they acted within their authority given the PHE and granted in U.S.C. 42, section 245. The VSP is within those documents. I read all of it and at that point, felt the FL case had been weakened but still had life. Life came in the form of FL's response that cited the laws that regulate commerce within ports. It's here that I think a case can be made that the HHS/CDC didn't have the authority to do that without consulting both FL and it's involved agencies and the US Department of Commerce - a federal agency that should have been in on the CDC's decision to shut down legitimate commerce in the form of cruise ships.   

If this were a complete and accurate recap of both sides arguments, the CSO gets enjoined. But it's been pointed out to me that both the law and the spirit of the law help to inform a federal judges ruling. This is where I think it gets very complicated. I also think that as the case unfolded, even though the CDC was scrambling, they made a decent argument that the CSO is a reasonable path forward. We can argue the details but the spirit of the CSO has served a purpose and the cruise lines have complied. Timely? I don't think so and that equates to points in FL's scoreboard. Too arduous so as to make it as difficult as possible to get cruising started faster than the CDC wanted it to? Clearly it was They based this hesitancy to grant an unconditional restart of cruising, correctly defined as a potentially high risk of disease acceleration based on it's definition as a congregate setting. You can disagree with that, you can argue but, but, the Healthy Sail Panel!!!! Wasn't that just as good and much more workable?  The ultimate agency to green light the industry once the NSO was lifted is properly the CDC ...... back to the original question - did the CDC exceed it's authority in implementing the NSO? 

I can see Merryday's ruling going either way. Certainly, his ruling is going to contain questions regarding the clarity of the applicable laws. He'll write in the form of a question, to what extent does existing law grant the CDC authority in a PHE and opine it's not clear. He'll add clarifying vague laws to make them clear is the role of congress not his. I think based on the economic damage the NSO and subsequently the burdensome CSO wrought on the travel and leisure sector of the global economy, because it was so extensive, economic interests WILL come into play although HHS/CDC has worked hard to argue they shouldn't. What else might come up is an opinion that there should have been better oversight through cross agency consultation at the federal level and that isn't covered in the current law - at least not that I can find.

It's a tough case and I'm going to fence sit. Regardless the outcome, I think the cruise industry is well positioned to adapt to however Merryday rules.

Unfortunately that all means we just keep on sitting in limbo because our government has reached the point where it so monumentally huge and bureaucratic that absolutely nothing really happens except wasting a massive amount of time and energy ?

I'm not even sure I know whether my cruise in about 30 days is actually supposed to be happening or not because no one really understands who's in charge and what they have agreed to.

Oh well, fingers crossed.

 

 

 

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On getting aggravated by the uncertainty of it all ........ put it in perspective. Since probably sometime in late fall of 2020 it became apparent the pandemic wasn't going to go away and would be around for a while messing with our work, our play and every social aspect of our lives. We started feeling despondent about a return to cruising - that was the case for me. Those feelings were confirmed by rising rates of infection after the Christmas Holiday with eased restrictions. Vaccines started rolling out in December and those early vaccines were available only to at risk groups.

Then came a series of hopeful events: targeted vaccines were reducing overall transmission as well as deaths and hospitalizations among all groups and this wasn't by just a little bit. Rates declined almost miraculously. The State of FL sues HHS/CDC and that prompts similar, tagential congressional activity. Reports from Europe and Asia indicated conditional sailings were going off without a hitch in terms of SARS2 outbreaks. Moreover, if there was a positive case on board, it was handled - the health and safety protocols on board these early sailings worked, most of them coming from the Healthy Sail Panel recommendations. These without any government oversight in design or implementation. Free Enterprise ONE, Government regulation and oversight ZERO.

Europe, the Caribbean and Asia were looking good for cruises to restart and be available for bookings by US citizens. Many of us booked cruises from those regions when they started showing up on RCL's and Celebrity's web sites. @Mattis on one now and reporting back to us. Celebrity Edge will sail from PEV on June 26th barring any unforeseen changes. The line-up of cruises after that is substantial.

So, what's the point? Well, cruising has restarted and although it's slow going to start for US Citizens and shipboard passenger protocols are still missing for cruises now scheduled to sail inside 90d, momentum is building. The FL Lawsuit and State's Governors implementing laws that essentially are preventing cruise lines from sailing from US ports and requiring all passengers to  be vaccinated, while a bump in the road it seems, these laws HAVE NOT stopped RCG and others from pressing ahead with work-arounds to those laws. I feel confident that missing, vague or unclear passenger protocols will emerge after Merryday rules this coming week ..... one way or the other. To the cruise Iines, how Merryday rules probably doesn't matter. They are prepared for any outcome at this point. 

That preperations allows wide-spread restarts without compromising the lines obligations to provide a safe ship-board environment wrt infectious disease. Dozens of ships are scheduled to sail from US ports in July and August and passengers and crew will be safer than ever from becoming ill on board. .......a silver lining so to speak. Personally, and I'll repeat, I don't think a Merryday ruling not in favor of FL will be disruptive to sailings cautiously scheduled and open for booking now from any of the FL ports. You have to congratulate all the cruise lines for where we are today, June 14th 2021 ..... ready to go. You have to take into consideration that the two pathways that will probably emerge next week following a Merryday ruling - (1) a restart under the provisions of the CSO or parts of it or (2) a restart under the provisions of The Healthy Sail Panel Recommendations, unanimously adopted by CLIA member.

The most significant difference between these two restart options is that there is no governmental oversight to assure compliance with the provisions of the Healthy Sail Panel's recommendations. When the cat's away, will the mice play? Not IMO. Free Enterprise TWO, Government regulation and oversight, ZERO. The risk of an outbreak that accelerates aboard ship and spreads from disembarked crew or passengers to local communities would be financially devastating to the lines. There's adequate protocols and processes in place to prevent that occurrence -some of them already adapted from both the CSO and the Healthy Sail Panel recommendations. Pressure on the lines to play it safe and the financial costs of screwing this up are just too great to restart cavalierly and without self imposed methods of assuring compliance with any non-government implemented health and safety protocols and procedures.

Happy sailing ?

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In a tangentially related court case in Texas where employees sued a hospital over their policy to require all employees to be vaccinated was dismissed by the judge hearing this case. What the ruling reaffirms is that employers in "at will" states like both Texas and FL are (employed at the discretion of the employer and according to the employers rules) have the right to terminate employees who don't follow established rules. That the ruling reaffirms a businesses right to mandate vaccines in the pursuit of their moral and ethical responsibility to provide a safe environment is critical.

The reaffirmation of a businesses right to mandate vaccines set by this ruling in a Federal Court in TX is going to weaken the ability of Desantis to continue insisting that cruise lines can't mandate vaccinations to board. No one with a brain thought this Desantis law would stand up to a legal challenge and a challenge in another state gives weight to the assertion it won't 

In the reaffirmation of an employers right to mandate vaccines for employees by extension, and in pursuit of creating a safe environment for both employees and customers, it would seem to me to extend to cruise ship passengers (customers in name).

IMO, this plays no role in how Merryday will rule on the FL Law Suit but it's chipping away at barriers to safely restart cruising from US ports in FL and Texas when a line wants everyone that sails to be vaccinated. Note Carnival has announced that it will be sailing ships from FL ports with only vaccinated guests. Seems like they knew this was coming.

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Nope ...... and I've been watching Court Listener daily. I meant to post an update earlier. Sorry.

It does not appear to me Merryday is any hurry to rule on the FL law suit. I'm speculating but I don't think Federal judges are purposeful fence sitters or like to wait around for something to happen that might shape their opinion and ruling.

These guys didn't get to the federal benches they sit on because they weren't smart. They climbed a complicated ladder to get to the Federal level. They know the law and they have several clerks around them that do the scutt work if they need refreshers.

The reality is that his is very complicated case with far reaching implications. I've already opined that I think Merryday will make a narrow ruling that sticks to the original 5 claims the state made. FL's strongest claim, IMO, is the one that involves the failure of HHS to notify (and by implication, consult) with state health and commerce authorities before they acted.  It is my understanding that a PHE does not relieve HHS of that requirement before imposing what amounts to federal policy - another claim the state makes that this sort of thing is in the congressional domain not the executive domain. This is where the legal issues get cloudy. I don't think that the CDC acted unlawfully or even over-reached because they imposed the NSO and the CSO via the VSP. It's possible that they exceeded their authority and of course that is another one of FL's 5 claims.

Again, I'm speculating but has everyone noticed that many issues involving cruise ship restarts seem a bit chaotic - just sort of treading water to see who throws the cruise lines, ports and ancillary service providers in the US a life line? Not sure but it seems like involved parties are waiting for clarity to emerge with a ruling - one way or the other - so everyone can get moving ahead. For now, we're at a standstill.

What I find interesting is that the uncertainty involving all aspects of a US restart has an impact on what's going on in Europe. I have two cruises booked from European ports. One is in July and the other in October. Both itineraries and/or sailing dates were recently changed. No question both of these changes are a result of shuffling ships around repositioning them. 

Strangely, on a June 9th update to Celebrity Apex's safety protocols sailing out of Athens, masks were identified as being required, indoors, outdoors and with the only exception being while seated and eating or drinking. Masks are are not required on or off Millennium sailing out of St. Maartin. I checked to see about any health policy changes in Greece that might have precipitated this change. Nothing official although I was advised by email from Celebrity that a tour I had booked through the ship in  Lamissol Cyprus dropped an indoor dining stop to sample Souvlaki. All a little strange and somewhat suspicious ...... but as my policy is at this point, I'm going with the flow, whatever it is.    

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