Jump to content

DeSantis/Florida wins prelim injunction over CDC


Recommended Posts

Jump to the conclusion at the end...

Because of (1) Florida’s probability of success on the merits, (2) the imminent threat of irreparable injury to Florida, (3) the comparative injury depending on whether an injunction issues, and (4) the imminent and material threat to the public interest, Florida’s motion for preliminary injunction is GRANTED, and CDC is PRELIMINARILY ENJOINED from enforcing against a cruise ship arriving in, within, or departing from a port in Florida the conditional sailing order and the later measures (technical guidelines, manuals, and the like). However, the preliminary injunction is STAYED until 12:01 a.m. EDT on JULY 18, 2021, at which time the conditional sailing order and the measures promulgated under the conditional sailing order will persist as only a non-binding “consideration,” “recommendation” or “guideline,” the same tools used by CDC when addressing the practices in other similarly situated industries, such as airlines, railroads, hotels, casinos, sports venues, buses, subways, and others. (Docs. 45-4; 45-5;45-6; 46-4)

However, to further safeguard the public’s health while this action pends, CDC may propose not later than JULY 2, 2021, a narrower injunction both permitting cruise ships to sail timely and remaining within CDC’s authority as interpreted in this order. The motion for the proposed injunction must support the proposed terms with current scientific evidence and fully disclose — if unavailable to the public — scientific evidence, including methodology, raw data, analysis, and the like and the names and qualifications of the scientists participating in the study, modeling, or the like. If CDC moves under this paragraph, Florida must respond within seven days. A hearing will occur immediately after Florida’s response. Additionally, if circumstances materially change at any time, either party can request a hearing to modify this injunction, a hearing will occur immediately (within twenty-four hours, if necessary), and an order resolving the motion will issue immediately.

The parties are ordered to return to mediation before Magistrate Judge Anthony Porcelli at a time and place ordered by Judge Porcelli and in accord with the terms (including confidentiality) of the earlier mediation order (Doc. 51).

Link to comment
Share on other sites

 

21 minutes ago, AshleyDillo said:

preliminary injunction is GRANTED, and CDC is PRELIMINARILY ENJOINED

I don't really speak legalese, but my interpretation is that effectively this suspends the CDC from taking action against a ship for violating the CSO.  

21 minutes ago, AshleyDillo said:

However, the preliminary injunction is STAYED until 12:01 a.m. EDT on JULY 18, 2021  at which time the conditional sailing order and the measures promulgated under the conditional sailing order will persist as only a non-binding “consideration,” “recommendation” or “guideline,” the same tools used by CDC when addressing the practices in other similarly situated industries, such as airlines, railroads, hotels, casinos, sports venues, buses, subways, and others.

But only through midnight on July 17, 2021, and then the CSO basically becomes guidelines and not requirements?

 

21 minutes ago, AshleyDillo said:

However, to further safeguard the public’s health while this action pends, CDC may propose not later than JULY 2, 2021, a narrower injunction both permitting cruise ships to sail timely and remaining within CDC’s authority as interpreted in this order.

And this gives the CDC a deadline to step up with better guidelines...

21 minutes ago, AshleyDillo said:

The motion for the proposed injunction must support the proposed terms with current scientific evidence and fully disclose — if unavailable to the public — scientific evidence, including methodology, raw data, analysis, and the like and the names and qualifications of the scientists participating in the study, modeling, or the like.

...based on science, which the CDC excels at ?

21 minutes ago, AshleyDillo said:

If CDC moves under this paragraph, Florida must respond within seven days. A hearing will occur immediately after Florida’s response.

Then Florida can come back and tell the CDC that yet again their guidelines are out of touch with reality and we have another hearing.

Link to comment
Share on other sites

Does not do anything about Florida's vaccination passport ban.  

With the CSO seemingly neutered, cruise lines are free to apply their own requirements for cruising from Florida.  

It does eliminate the test cruise requirement for cruises after July 18 but it doesn't mean cruise lines will sail absent of any protocols.

No masks for vaccinated would be a great start.  

Link to comment
Share on other sites

9 minutes ago, ConstantCruiser said:

Doesn't help Freedom's initial cruises either.  She will still need a test cruise if she wants to sail July 2nd as planned and masks for everyone indoors (CSO based requirement) for the first two weeks at least.

Right but It doesn't look like the mask thing will be going away.

Link to comment
Share on other sites

19 minutes ago, smokeybandit said:

So what does it all mean for the cruise lines?

Probably nothing at this point, since there are still plenty of loose ends to tie up before July 18

Means that unless the CDC comes back attempting to narrow the injunction, then after July 18 they won't have the CSO hurdle to cross to get back into service.  It will only be a matter of logistics and trying to keep everyone safe and healthy and happy, which as you can see from various topics all over this messageboard, can be very polarizing.

Link to comment
Share on other sites

7 minutes ago, AshleyDillo said:

Means that unless the CDC comes back attempting to narrow the injunction, then after July 18 they won't have the CSO hurdle to cross to get back into service.  It will only be a matter of logistics and trying to keep everyone safe and healthy and happy, which as you can see from various topics all over this messageboard, can be very polarizing.

But that's still after July 18. Still a lot can happen between now and then. The judge even left the window open for both sides to settle things in mediation again (which seems futile). For right now cruise lines can't really act on much yet.

Link to comment
Share on other sites

8 minutes ago, Cruising With JT said:

Okay whew...was beginning to get worried lol...hopefully that is the case.

The notion of this lawsuit preventing Alaska cruises was introduced by the CDC to cast shade on the lawsuit.  I think the judge saw through that and found a way to prevent that from happening.  However I'm not a lawyer and I don't play one in cruise forums. 

Link to comment
Share on other sites

16 minutes ago, smokeybandit said:

But that's still after July 18. Still a lot can happen between now and then. The judge even left the window open for both sides to settle things in mediation again (which seems futile). For right now cruise lines can't really act on much yet.

Remember the intent of this whole lawsuit by Florida was to point out the CDC was overstepping its authority.   It's a little late in the game for there to be a big, huge impact based on this order since they already are in the test sailings phase.

If you read through the order it even discusses that the CDC argued that Florida couldn't have suffered economic harm from the shutdown. If so they would have filed this motion when the CSO was originally ordered instead of waiting in good faith that the CDC would come through timely with the framework to get the cruise industry up and running again.

Link to comment
Share on other sites

Hmm I don't think many of the protocols will change until a few months from now. The industry is under a microscope, so they need to ensure things go as smooth as possible. Regardless of personal opinions, science says vaccines are a huge factor in regards to Covid.  Therefore they are tantamount to safe cruising and I think most cruise lines would prefer it to be 100%

Link to comment
Share on other sites

The 95% number keeps getting mentioned in various threads.  If I understand the situation, the 95% really didn’t come into play for FL cruises for the most part, as it was only to sail without the test cruises.  Once you do the test cruise doesn’t the 95% figure become irrelevant?

Link to comment
Share on other sites

7 minutes ago, gatorskin76 said:

The 95% number keeps getting mentioned in various threads.  If I understand the situation, the 95% really didn’t come into play for FL cruises for the most part, as it was only to sail without the test cruises.  Once you do the test cruise doesn’t the 95% figure become irrelevant?

That is my understanding.  

Link to comment
Share on other sites

8 minutes ago, gatorskin76 said:

The 95% number keeps getting mentioned in various threads.  If I understand the situation, the 95% really didn’t come into play for FL cruises for the most part, as it was only to sail without the test cruises.  Once you do the test cruise doesn’t the 95% figure become irrelevant?

95% was only a way around the test cruise. Technically if you found yourself on a cruise with say only 92%, you wouldn't be allowed to sail if you hadn't yet done a test cruise.

Link to comment
Share on other sites

1 hour ago, MrMarc said:

The Judge may try to limit it to Florida, but he is ruling that the CDC overstepped it's authority, which would affect all states.  If he had ruled for the CDC we would at least know what the rules were, no nobody has any idea.

He didn't rule on the lawsuit.  He approved an injunction while the lawsuit continues to play out in court.  A lawsuit like this could take years to get to the point of a final ruling one way or the other.  The injunction allows cruise lines to operate without the CSO regulations being enforceable until the lawsuit concludes.

Someone with more legal knowledge will need to determine if an injunction can be limited in scope to just Florida.

 

Link to comment
Share on other sites

1 hour ago, smokeybandit said:

95% was only a way around the test cruise. Technically if you found yourself on a cruise with say only 92%, you wouldn't be allowed to sail if you hadn't yet done a test cruise.

Agree, to me 95% vaccinated or 92% vaccinated does not mater much.  I would be more concerned with having to wear masks while on the cruise.

Link to comment
Share on other sites

Welp, I just read all 124 pages of the ruling. My key takeaway has nothing to do with a return to cruising for us. I'll get to that:

In rendering his ruling, Merryday focused right in on the CDC's authority to issue both the NSO and the CSO. There is probably 80 pages on this subject alone yet it is only one of the five claims addressed. Why?

The central issue for Merryday in this case is ruling on whether an executive agency (the CDC) has the constitutional authority to impose what Merryday characterizes as an unlawful exercise of law making granted to Congress. He goes on to say, the CSO is, for all intent and purpose a law. It looks like a law, is filed like a law in the Federal Registry and is enforceable with penalties under the law  ...... ITS A LAW - the CDC has no authority to make laws under any of sections or subsections of US Code that the CDC asserts is the basis for the CSO. In fact, he absolutely blows out of the water the arguments advanced by CDC lawyers, quoting them and showing exactly why they are wrong interpretations of previous and pertinent rulings that address the authority of the executive to make laws.  

His ruling therefore has significant implications on limiting the administrative powers of the executive branch. He bemoans the undeniable drift towards an administrative state over the last 150 years that has become inappropriately ruled by administrators who are accountable to no one. HIs words in this regard in his ruling are compelling, powerful and far reaching. Merryday is putting his stamp on stopping this drift where Congress is unempowered and the executive is empowered. He rightfully states that this is not what a constitutional republic is about.

OK, having got that out of the way lets address some of the other more mundane but nonetheless important issues:

If I'm reading the ruling correctly, it is so sound, so based on documented legal precedents going back 100s of years wrt to the limited powers of health authorities to act in the public health's interest (and there is a ton of case law on this), that I don't see what the basis of an appeal might be. Federal judges don't like their rulings over-turned by the USC. They'll go to great lengths to make that so. See my paragraphs above. It is foundational to Merryday's ruling and makes it very hard to appeal. The government might try but the next step is the Supremes. They'll get laughed out of court. 

While Merryday enjoined the CSO it remains in force for FL sailings through July 18th. IMO, that means there won't be any immediate changes. Let's see how this percolates over the weekend.  I'm speculating but I think the lines may politely but very firmly work with the CDC to come up with something that looks way more like the Healthy Sail Panel's recommended scheme. Stuff like port agreements, test sailings v. 90/95, passenger limits at least at the extremes they are currently set may disappear as requirements and remain as recommendations. If that happens, it would be to advance the speed by which the lines can ready their ships and start sailing.

Vaccinations? Merryday goes a long way in his ruling touting them as a basis upon which the cruise lines should be able to get safely rolling again. If anything, In FL, I see a continuation of the requirement to be vaccinated to cruise because that approach is working elsewhere to contain outbreaks and make them manageable if they occur - Singapore sailings policy not withstanding but there are other reasons vaccination requirements are eased there. The Desantis ruling continues to run afoul of the blitheringly obvious benefits to vaccinating travelers on cruise ships but, if anything, the Merryday ruling bolsters FL's claim that state authority trumps federal authority unlawfully enacted. There is no federal mandate for vaccination. Its recommended. Therefore, the applicable law get down to EEOC regulations that permit businesses to establish their own policies for regulating work place halth and safety as long as it isn't discriminatory. So far, that's been upheld in the TX case. My view that the Desantis bad won't stand up to a court challenge. Hard to say how this will pan out. It's an open question. As of now, it appears RCL isn't going to confront Desantis. That could change.  

Only cruise line sailings from FL ports are affected by the current Merryday ruling. The CSO remains in effect everywhere else .... but I suspect not for long. State's AGs will move to have the CSO enjoined where the states have maritime regulatory jurisdiction; the Merryday ruling goes a long way in establishing that federal agencies need to tread lightly on federalism and state's rights. 

Merryday did not rule on Alaska's and Texas' request to join the suit on the basis that the grounds for inclusion "were unclear." Not for long but both state's AGs will move in a different direction as above. I could see a rapid but very controlled expansion of sailing from all the other non-Canadian ports we've been talking about. Expansion will be logistically limited but I'll bet the corporate wheels are already turning.

I may have more to post on this but right now my brain is tired.

 

 

Link to comment
Share on other sites

I know that this currently only affects Florida, but what happens to the PVSA override if the CSO goes away? The way I understand it, if the CSO goes away then cruise ships will have to stop in a foreign port during a cruise to Alaska. Canada will not allow this until Feb.

Link to comment
Share on other sites

20 minutes ago, ConstantCruiser said:

He didn't rule on the lawsuit.  He approved an injunction while the lawsuit continues to play out in court.  A lawsuit like this could take years to get to the point of a final ruling one way or the other.  The injunction allows cruise lines to operate without the CSO regulations being enforceable until the lawsuit concludes.

Someone with more legal knowledge will need to determine if an injunction can be limited in scope to just Florida.

 

I need to address this. When it comes to Federal Court and Supreme Court rulings like the one we're talking about here, how the ruling is framed is as important if not more important than the ruling itself which @ConstantCruiser correctly observes that Merryday has enjoined the CSO (ruling in FL's favor) and that's all he did.

Importantly, Merryday has reinforced the notion of federalism and the dangers of creating the administrative state. HIs opinions buttressed by thousands of words citing previous case law - how he has framed his decision to enjoin the CSO - works to inform future disputes that involve the kinds of claims FL made.

He basically slammed the CDC though. Does that amount to a ruling. It does in one sense but the reasons he slammed the CDC are more important in the evolving law on this matter of the constitutionality of unclearly defined executive authority. He's basically telling Congress, you guys might want to do your jobs and look at this. The CDC took a bite out of your law making authority and you ought to be concerned about it. 

Link to comment
Share on other sites

12 minutes ago, stevendom57 said:

I know that this currently only affects Florida, but what happens to the PVSA override if the CSO goes away? The way I understand it, if the CSO goes away then cruise ships will have to stop in a foreign port during a cruise to Alaska. Canada will not allow this until Feb.

This is a good question. When I was looking at this a couple of weeks ago and reading the CDC's and FL's arguments on this, I thought the CDC was FOS. In reading Merryday's opinion, the part were the CDC claims that if the CSO is enjoined it will negate the PVSA, he thought that was a weak argument. I guess he's implying that the PVSA is an act of Congress and unlike the CSO that isn't and should have been, the PVSA will stand. JMO. This could get complicated but I think the PVSA stands.   

Link to comment
Share on other sites

1 hour ago, JeffB said:

Welp, I just read all 124 pages of the ruling. My key takeaway has nothing to do with a return to cruising for us. I'll get to that:

In rendering his ruling, Merryday focused right in on the CDC's authority to issue both the NSO and the CSO. There is probably 80 pages on this subject alone yet it is only one of the five claims addressed. Why?

The central issue for Merryday in this case is ruling on whether an executive agency (the CDC) has the constitutional authority to impose what Merryday characterizes as an unlawful exercise of law making granted to Congress. He goes on to say, the CSO is, for all intent and purpose a law. It looks like a law, is filed like a law in the Federal Registry and is enforceable with penalties under the law  ...... ITS A LAW - the CDC has no authority to make laws under any of sections or subsections of US Code that the CDC asserts is the basis for the CSO. In fact, he absolutely blows out of the water the arguments advanced by CDC lawyers, quoting them and showing exactly why they are wrong interpretations of previous and pertinent rulings that address the authority of the executive to make laws.  

His ruling therefore has significant implications on limiting the administrative powers of the executive branch. He bemoans the undeniable drift towards an administrative state over the last 150 years that has become inappropriately ruled by administrators who are accountable to no one. HIs words in this regard in his ruling are compelling, powerful and far reaching. Merryday is putting his stamp on stopping this drift where Congress is unempowered and the executive is empowered. He rightfully states that this is not what a constitutional republic is about.

 

 

Excellent summary! To me it was clearly written in anticipation of an appeal.  I think he will do everything he can not to make a final ruling on this, because he is aware of how far reaching such a ruling could be.  Everyone is concentrating on how this affect cruising.  I think the implications go far beyond that.  It seems to me that the CDC lawyers were not nearly as prepared as they should have been, perhaps overconfidence?  It will be interesting to see what they bring this next time.  Also, I do not know how he could be clearer that he wants Florida to allow cruise lines to ask for proof of vaccination, other than coming right out and saying it.  That is the really the only issue they have to offer to reach a compromise.  

Link to comment
Share on other sites

1 hour ago, stevendom57 said:

I know that this currently only affects Florida, but what happens to the PVSA override if the CSO goes away? The way I understand it, if the CSO goes away then cruise ships will have to stop in a foreign port during a cruise to Alaska. Canada will not allow this until Feb.

The CSO isn't going away. It's merely going to become a set of recommendations, not a binding rule

Link to comment
Share on other sites

12 minutes ago, smokeybandit said:

The CSO isn't going away. It's merely going to become a set of recommendations, not a binding rule


….. and once it’s just a set of recommendations, the cruise lines can tell the CDC to go to hell if they choose to ….. then make up their own more common sense rules 

 

Link to comment
Share on other sites

@smokeybandit Exactly

Right now plenty of places are going by CDC recommendations but tailored to fit whatever they need to accomplish. That was the main issue, the CDC made it law so for 15 months the cruise line had no revenue....even though they submitted protocols and tried to comply.

I don't think much will change except maybe how Vax'd individuals will be treated. Mask will probably be optional for those individuals and mandatory for the un-vax.

I don't think they will dramatically increase capacity or introduce more of the fleet either. RCG has always said the restart would be slow and methodical. I just think it is more-so 100% certainty that cruising is back to the US.

Link to comment
Share on other sites

Wow. Glancing through this 124 page order, the judge seems to slap the CDC down throughout his order. A few examples: 
  • "the expansive breadth of authority asserted by the conditional sailing order to microscopically regulate a multi-billion- dollar industry is breathtaking."
  • "the conditional sailing order imposes an indiscriminate and burdensome conditioning of free pratique that amounts to an unprecedented detention of an entire fleet of recreational cruising vessels."
  • "CDC’s authority to issue the conditional sailing order remains suspect."
  • "In short, none of the regulations invoked by CDC justifies the conditional sailing order."
  • "CDC cites no historical precedent in which the federal government detained a fleet of vessels for more than a year and imposed comprehensive and impossibly detailed “technical guidelines” before again permitting a vessel to sail."
  • "Thus, although CDC enjoys the authority to temporarily detain a vessel and to condition pratique, that authority is not boundless."
  • "In sum, defining “transmission” as a single human-to-human infection, CDC claims authority to impose nationwide any measure, ... to reduce to “zero” the risk of transmission of a disease — all based only on the director’s discretionary finding of “necessity." That is a breathtaking, unprecedented, and acutely and singularly authoritarian claim."
And on and on it goes with the judge slapping the CDC for its unlawful overreach.
Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
×
×
  • Create New...