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State of Florida Sues CDC Over Cruise Shut Down


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To illustrate the impact of one ship leaving Florida and sailing from the Bahamas, Michael Bayley recently estimated just under 2,000 guests per weekend will be sailing from Nassau. That sounds about

Maybe California will contemplate convening a study to explore the idea of considering a tentative involvement in a limited commitment to a flexible proposal surrounding the concept of engaging in pre

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To illustrate the impact of one ship leaving Florida and sailing from the Bahamas, Michael Bayley recently estimated just under 2,000 guests per weekend will be sailing from Nassau. That sounds about right for a ship at 50% capacity.

CLIA has calculated the average cruise ship guest spends $385 in the home port before boarding a cruise.

1,800 x $385 = $693,000 per weekend not being spent in Florida bars, restaurants, hotels, taxis, etc.

That's one ship at reduced capacity.

Multiple it by two for full capacity and multiple it by many more for all ships across all lines sailing from Florida on any given weekend.

That should give you an idea of what's at stake for Florida.

And that doesn't include any of the other spend by the cruise lines for supplies and such, or other related jobs the industry supports.   

 

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I'm in favor of anything that moves the needle towards ships restarting.

I'm not still not clear under what tort they are suing, but it's good to see more support for cruises.  I think we call felt that for much of 2020, it was cruisers vs the world/CDC.  Now it seems that narrative has shifted considerably.

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2 hours ago, twangster said:

Filing an actual lawsuit rises above "stunt".

This

The case was filed today in Federal Court. Current listings for the Middle District only go through the 7th, but I'll find it tomorrow. Until I can read the entire case filing I can only speculate about the details so, here's that speculation:

The case isn't likely to be a tort claim although one of the criteria for such a claim is damages. So, there is that - the cruise industry can show that in terms of lost revenue. Tort claims are intended to fully restore a plaintiff and the cruise industry isn't asking for money. They want to sail and will seek a court decision where the judge enjoins enforcement of the NSO.  

This is more likely to fall into the category of an Administrative Procedures Act/Review or Appeal of Agency Decision.

I had suggested elsewhere that the easiest target in obtaining an injunction might be a violation of 14A - to wit: undue restraint of trade or commerce. The Plaintiff, in this case the state of FL, would seek to have the judge declare the CDC's NSO and by extension the CSO an unconstitutional restraint of trade and therefore unenforceable by DHS.

Things get tricky with the PHE declaration by HHS. That is both constitutional and lawful as far as I can tell and the NSO and CSO derive from that. 

Attorneys for the Plaintiff would have to argue that while the PHE grants the CDC authority to restrict activity that presents a public health risk (e.g., cruise ship operations and every other economic endeavor associate with those), such restrictions of the cruise ship industry's operations run afoul of 14A (undue government restriction of trade and commerce). This was not the case in March 2020. The risk of disease spread was unknown but presumed to be high in congregate settings. Made sense. 

At this point, the risks of SARS-2 transmission are more fully understood and we have layered mitigation measures designed to reduce such risks. These have been developed and proven to be successful in preventing C-19 outbreaks within the travel and leisure sector of the global economy. Yet the CDC says cruise ships, unlike other similar travel and leisure venues that are operating now can't operate from US ports? I don't think that is defensible. Vaccines are the game changing wild card. When the Plaintiff throws that card on the table as a means of reducing the risk of transmission aboard a cruise ship to near zero by itself and then add in the other layers of protection the cruise lines have adopted, I'd like to see Justice Department lawyers defend the overly complex and burdensome provisions, required only of cruise shops while not of similar travel and leisure venues of the CSO.  

Anyway, I'm not a lawyer so TIFWIW. I had fun speculating. Gives me hope that the CDC clown show is going to get pantsed in court of law. 

 

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Looks like mainly statutory (Administrative Procedure Act) claims, with one constitutional claim thrown in for good measure.  I think claims 1 and 2 ("Agency action not in accordance with law and in excess of authority" and "Arbitrary and capricious agency action") are the two main claims.  

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At this rate, it is likely the industry will be locked down until at least November. While the CDC issued new guidance on April 2, 2021, this guidance is only a portion of what the industry needs before it can start phasetwo test voyages.14 And this new guidance doesn’t adequately account for the CDC’s recent statement that “fully vaccinated people can travel at low risk to themselves.”15 Moreover, the guidance moves the goal posts yet again. For example, the CDC has increased the reporting frequency of COVID-19-like illnesses by cruise ship operators from weekly to daily. It also now requires cruise ship operators to enter into agreements with all U.S. port and local health authorities where they intend to dock.

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The CDC has continued these actions against the cruise industry even as it has treated similar industries differently, including ones that hold passengers in close quarters. For example, the CDC has not shut down the airline industry—focusing instead on “cleaning of aircraft” and “recommendations for hand hygiene.”

Some good stuff in there.  On the other hand, might be hard to convince a judge to reject the entire CDC framework that exists.  I don't know the MD Fla judges...wonder who will get the case.   

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IMO, this is a slam dunk case. Yet, OJ was ruled not guilty.

I don't think there is any question that the court has jurisdiction and the case has standing in the Middle District Federal Court (Tampa). The government will try to have the case dismissed claiming everything that has been done by HHS and the CDC is authorized under the PHE declaration. In reading the case file, I can see that FL lawyers already have anticipated that and addressed it in the counts below.

I don't see any technical obstacles. The counts are effectively described with appropriate case law sited

Count 1: Agency action not in accordance with law and in excess of authority. The suit alleges that the CDC was granted authority under US Code (USC) to do specific things. It goes on to allege that the CDC both broke the laws granting said authority and exceeded it's authority - mainly and in this case, by locking down the cruise industry through November, 2021. The suit alleges it has no authority to do that.

Count 2: Arbitrary and capricious agency action. ......a court must “hold unlawful and set aside agency action” that is “arbitrary [or] capricious,” as Defendants’ actions are here. Argument is made that multiple other and similar businesses are open or are reopening with appropriate and reasonable mitigation measures and are operating safely. Only the cruise industry's business activities have been unlawfully restrained.

Count 3: Agency Action Unlawfully Withheld or Unreasonably Delayed. In the alternative, and for the same reasons stated in Count 2, Defendants’ failure to allow the cruise industry to safely reopen constitutes final agency action unlawfully withheld or unreasonably delayed, in violation of 5 U.S.C. § 706

Count 4: Failure to Provide Notice and Comment. This one is complicated but nonetheless strong. Basically it alleges that the CDC sought public comment, got it and did nothing with it. We weren't privy to this but I'm sure the cruise industry people working with the CDC complained about this and will now get their day in court.

Count 5: Unconstitutional Exercise of Legislative Power. A straight forward legal argument. Quoted here:

71. Article I, Section 1 of the U.S. Constitution states, “[a]ll legislative powers herein granted shall be vested in a Congress of the United States.” Under Article I, Section 1, only Congress may engage in lawmaking. 72. If the Conditional Sailing Order does not exceed the authority under 42 U.S.C. § 264 and the relevant regulations, then Section 264 constitutes an unconstitutional exercise of lawmaking by the executive branch, affording the CDC the power to determine the rights of millions of citizens, to decide on the survival of countless businesses, and to make a host of sweeping policy decisions absent meaningful accountability.

Kind of a back-up, catch the CDC if the Judge rules for the defendant on the other counts.

Finally, what is the state of Florida asking for. Again a quote because it is clear and succinct just like the Judge wants them to be:

PRAYER FOR RELIEF For these reasons, Florida asks the Court to:

a) Hold unlawful and set aside the Conditional Sailing Order.

b) Issue preliminary and permanent injunctive relief enjoining Defendants from enforcing the Conditional Sailing Order.

c) Postpone the effective date of the Conditional Sailing Order.

d) Declare unlawful the Conditional Sailing Order.

e) Declare that the cruise industry may open with reasonable safety protocols.

f) Award Florida costs and reasonable attorney’s fees.

g) Award such other relief as the Court deems equitable and just.

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So what happens next? The case will be put on the court's docket. I don't see that an emergency hearing was requested. It might be at a later date if it appears that the case won't be heard fast enough for the lawyers arguing the case.

There will be a preliminary hearing. The judge's clerks will have prepared briefs in advance for him that he will have read. Both sides will present arguments for and against. The judge can rule or he can postpone pending additional information. The Justice Department lawyers defending the CDC will request that right out of the box. The plaintiff's attorneys will argue time is of the essence and I believe that argument has legs. We'll get to watch the Justice Department lawyers try to defend the laugher that is the CSO. Hate to be them!

The plaintiff will seek an immediate injunction based on the arguments presented to the judge. The case seems strong to me but, I'm a lay person. The law is quirky and a unsuccessful outcome for the plaintiff is usually due to stuff that people untrained in the law find hard to understand 

Let's say the judge rules. He can either grant the injunction the plaintiff seeks, deny it or order some other undertaking (e.g., why don't you guys sit down and work this out with an arbitrator).

The $64,000 question is what if the judge grants an immediate injunction? Well, the cruise lines have from whenever in April to the end of June to get a limited and carefully selected number of ships and crews ready to accept passengers; ports have the same amount of time to rehire workers and train them. July cruises will sail. From what ports to where and on what itineraries will emerge over the next few weeks. 

Exciting times.

 

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  • Matt changed the title to State of Florida Sues CDC Over Cruise Shut Down

I have to verify this but listened to some commentary abs they said DeSantis was asked that if the cruise lines require vaccines, would he make exception and he said no.

What if CDC came back and said, cruised can resume with vaccinated crew and passengers, would DeSantis hold firm and be the reason that ships couldn’t sail from Florida? Will be interesting to watch If CDC turns the pressure back onto DeSantis. In that case it seems that it would be politically untenable for DeSantis then be the reasons no cruises out of Florida and continued job loss at the ports 

 

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29 minutes ago, UNCFanatik said:

I have to verify this but listened to some commentary abs they said DeSantis was asked that if the cruise lines require vaccines, would he make exception and he said no.

At the 29:00-ish mark, he may have been asked about cruise lines requiring vaccines, but it's tough to tell the question actually asked

 

 

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9 hours ago, smokeybandit said:

At the 29:00-ish mark, he may have been asked about cruise lines requiring vaccines, but it's tough to tell the question actually asked

 

 

I think possibly by July we will be at herd immunity and people wanting a vaccine will be close to zero. Those that want it will have had it. 
 

We had one death in Florida yesterday. (However there were over 7,000 cases)

I’ll go out on a limb here: vaccines won’t be required therefore DeSantis ban on private companies requiring vaccine to enter a business won’t be in play. 
 

I know it’s a stretch but DeSantis was pretty clear he won’t tolerate businesses requiring vaccine for entry. Will be interesting to see how this part plays out. Will the cruise lines be an exception to the “rule?” 

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I've been under the impression that the only businesses affected by the Desantis position on vaccines are those operating in FL under a FL business license. I don't think that whatever the cruise lines decide is going to be their vaccination policies would be affected by the Desantis position. To my knowledge they're not required to obtain a FL business license and that they don't have one is why retail shops onboard close when ships are in port. Not sure how bars are affected because they are serving in port.  

There's another complicating matter. Ports in FL operate in certain situations under federal jurisdiction. The NSO springs from that. The feds mandated masks in those facilities that come under federal jurisdiction, e.g. airports, train stations, etc. I suspect some port operations are impacted by federal laws. We already know the feds aren't going to mandate vaccines. So there appears to be no conflict between federal law and the Desantis vaccine position.  

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It would be very easy to get around DeSantis saying they cannot require vaccines.  They could say vaccines are required due to the ports of call requiring them.  Much like you needing a passport to go to St Martin.  The cruise lines asking the Caribbean ports to require cruise passengers be vaccinated should be a piece of cake compared to everything else.

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11 hours ago, danv3 said:

I wonder if any of the cruise lines will try to intervene as additional plaintiffs. They’d seem to have more clear standing than a state since they’re directly impacted by the CSO. 

I share your opinion and believe they should sue for recovery of financial loss.  Airlines got bail out money.

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