State of Florida Sues CDC Over Cruise Shut Down

[MrMarc]

25 minutes ago, JeffB said:

Sure ...... referring to my statement that the CDCis on notice to "tread lightly," applies only to treading lightly on even the hint that they are trying to pull off an end run by coercing or otherwise enticing the cruise lines to comply with the provisions of the CSO.

On reading that thing and trying to become familiar with the U.S.C. that applies, IMO, what is in question here is the issue of free pratique and exactly by what means and for how long, the CDC can limit it under existing law. It's clear that Judge Merryday thinks the CDC (on the merits of the case) to have exceeded the powers that they were granted by Congress by issuing the CSO. Of course that thought is not final. The CDC could still prevail. Nevertheless and regardless of the outcome of the litigation, I would think that they'll be hesitant going forward to try to duplicate that action in the future.

I think, in retrospect, whatever happens with the litigation and even if FL wins, the maritime law in question is rather narrowly defined. JMO and these are very complex maritime legal issues that I certainly don't claim to be an authority on 

 My take is that your fears aren't warranted. The background here is that it has become clear to me that the CDC and the cruise lines cooperated in the development of the CSO, bumps along the road notwithstanding - maybe not initially but, as time went on. I think that cooperation will continue. I think that is a good thing. I have issues with the CDC's pandemic messaging. Beyond that, they serve an important public interest.

When I did the side by side comparison of the HSP and CSO last week, my sense was that the CSO was actually the more current set of guidelines, most reflective of the current pandemic circumstances if not from a practical standpoint, it was from a scientific one. The CDC, IMO, wrongly assumed the sneaky, money hungry cruise industry would figure out ways to get around them and to sail their ships as profitably as possible and damn new, complicated and costly health protocols to address SARS2. Based on that faulty assumption that didn't recognize the substantial motivation the cruise industry had to get their health protocols right, the CDC made the CSO enforceable by levying fines for non-compliance. They also shut down the entire cruise industry from operating from US ports with the NSO and hamstrung it's restart with the CSO. Merryday called them on that.

My best guess is that FL will prevail in the end but that is not going to remove the current health protocols implemented so far that have produced a most excellent outcome. They've worked exceedingly well and demonstrated exactly how you contain outbreaks of infectious disease in congregate settings of all types but especially cruise ships. If that continues, and I feel confident it will, cruise ships won't present a question of the need for quarantine of an entire ship if infected people are aboard and upon it's arrival in port going forward. Protocols to deal with infected crew and/or passengers are present and tested. They work. First to prevent outbreaks on board ship (none so far) and second to transport those that are infected off the ship. Using those tested protocols will prevent and have prevented the spread of COVID on cruise ships. Moreover those protocols have protected communities that receive the infected. 

I tend to agree with you, and this is one of the reasons that I wish this important question regarding the delegation of power to a Federal Agency in it's enabling legislation was centered on a more important issue, or actually almost any other issue.  However, while I think the protocols will initially be followed, competition may relax them too quickly.  One bad cruise could be disastrous to the industry.  As for the NSO, we can't go back and change it.  So far we have not seen Florida take any action on the 95/5 workaround that cruise lines have come up with.  Now that the CSO is not enforceable, I am waiting for Florida to try and force that to end.  Since they are no longer limited to the 95/5 capacity limits, it is harder to claim they are not denying service based on vaccination status but because of capacity limits.  It would be like a restaurant having 25 tables for vaccinated people and 1 for  unvaccinated people trying to claim they were not denying service based on status.  I am not worried about Texas even though the injunction (or stay, I keep forgetting which mechanism they are using) now applies in Texas.  The Texas law is structured differently, and the Port of Galveston has specifically said they would allow cruise lines to require proof of vaccination status.  It is amazing how one word("otherwise") can change a law.

[MrMarc]

3 hours ago, JeffB said:

Judge Merryday today has approved TX's motion to "intervene" (#26) making them a party to the original FL law suit. If FL prevails in the litigation scheduled to begin on August 12th in Merryday's court, the CSO will be unenforceable on ships sailing from Texas ports too.

What this tells me is that Merryday is signaling that a win by FL in their law suit may not invalidate the CSO in its entirety - only for cruise ships sailing out of FL and TX ports. I don't think that is earth shattering news. If FL prevails the CDC's authority to act in a PHE to the extent they did with the NSO and CSO is going to get restricted in two ways. It may not be restricted by the court's precedent in the matter but most likely by Congressional action to limit their authority going forward.

That's certainly not guaranteed especially in D controlled legislative and executive branches. The precedential nature of a FL win, though, is going to make the CDC and any government agency vulnerable to state governments or businesses seeking injunctions on overly broad and restrictive actions which governments might impose based on a future emergency, PH or otherwise. 

   https://storage.courtlistener.com/recap/gov.uscourts.flmd.388773/gov.uscourts.flmd.388773.117.0.pdf

Interesting that the order does not extend the TRO (or Stay) to Texas, since it specifically enumerates Florida, will Texas have to file it's own motion?

[Shari]

Is there any word on what happened on the 12th (when this case was supposed to be heard in Judge Merryday's court)?

[smokeybandit]

14 minutes ago, Shari said:

Is there any word on what happened on the 12th (when this case was supposed to be heard in Judge Merryday's court)?

Merryday granted another 14 day extension

[JeffB]

I don't believe the outcome of this case means diddly to the cruise lines. Those operating from US ports have agreed to voluntarily comply with the CSO. 

OTH, if FL prevails, the outcome will be viewed as precedential for impeeding further actions from the executive branch of government that exceed powers given to an agency by congress. This is the bigger deal to me.

The cruise industry will find full recovery a ways off given the continuation of unnecessary headwinds created by governmrnts world wide in the form of travel restrictions and vaccination complexity. But they'll be fine. 

[smokeybandit]

The CDC dropped its appeal.

 

https://cbs12.com/news/local/feds-drop-appeal-on-cruise-industry-restrictions-ships-cdc-centers-for-disease-control-prevention-desantis-florida-attorney-general-ashley-moody-norwegian-line-covid

[JeffB]

I can't help but believe a lot of legal maneuvering went on behind the scenes. That the 11th apparently never heard oral arguments from the two sides indicates motions were filed by both to delay. Finally, with the CSO never legally enforceable, HHS filed a motion to dismiss...... granted (happily). 

 This tale is a good example of the courts holding the two sides accountable to iron out their differences and I'd say they did. The Merryday ruling from the 3rd was, quite frankly, a gun to the head of HHS. In the end though, the CDC never admitted, nor did the courts find conclusively, that they didn't have the authority to issue the CSO. The cruise industry re-started under what was more-or-less an acknowledgement that much of the guidance published in the CSO was a good way to prevent a repeat of March 2020. A win-win.

The big win for the cruise industry was probably that they were able to sidestep much of the onerous administrative burdens - the paper work - voluminously detailed in the order. A smaller, but nevertheless important win for the CDC, is that the cruise industry followed most of the health regulations and protocols on their own (the Healthy Sail Panel recommendations widely adapted) and it turned out they worked pretty well.

[BrianB]

Legal maneuvering on the part of the government to ensure there would be no future cause for a claim that the shutdown was unconstitutional, resulting in a finding allowing the cruise companies to sue for damages. That would entail huge amounts of money. No telling what workarounds were arranged by both sides to avoid that.

[JeffB]

4 hours ago, BrianB said:

Legal maneuvering on the part of the government to ensure there would be no future cause for a claim that the shutdown was unconstitutional, resulting in a finding allowing the cruise companies to sue for damages. That would entail huge amounts of money. No telling what workarounds were arranged by both sides to avoid that.

If you're suggesting the cruise lines might sue the US government for damages in a tort claim, that's nearly impossible. Parties can sue the US government under what is called the FTCA (Federal Tort Claims Act) passed in 1946 but certain rules have to be followed and conditions met. It's complicated and I don't think the cruise lines would be able to cross the high bar to file a claim. Parties can sue the US government and it's agencies for injunctive relief and that's what Desantis did over a year ago.

Even though it appears that the CDC dodged being called to account for exceeding their authority granted to it by Congress (those maritime laws are also complex), the 3rd Court where Desantis filed his request for injunctive relief (from the CSO) stands. Judge Merryday, sitting on the bench of the 3rd District Court of Middle FL, wrote an opinion that just hammered HHS/CDC for acting unconstitutionally as if it were a law making body, instead of the administrative one it is. That will serve as precedent in the rather narrow application of the various maritime laws that the CDC claimed authorized them to issue the NSO in March, 2020 and the CSO a year later. Functionally, Judge Merryday's  ruling stands. That's because, as a result of CDC asking the 11th Court of Appeals to dismiss their own appeal, HHS is prevented from shutting down whole industries or companies within them under the guise of a PHE going forward. 

For Desantis, mission accomplished.