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DeSantis/Florida wins prelim injunction over CDC


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41 minutes ago, smokeybandit said:

What motivation would Florida have to agree to any alteration of the CSO? 

Zero. FL has the CDC on the ropes if not down for the count. But I'm not ruling a compromise out. Judge Merryday made it clear the CDC has a role in protection of the nation's public health and the case law is pretty clear that it does. I don't think he wants to emasculate the CDC. They just have to act within the law that involves issues of separation of powers between the executive and legislative branches of government. i.e, Congress writes the laws and the executive branch carries out implementation strictly within them.

CDC didn't do that out of the gate. In fact, Merryday makes a huge point of this failing. Has the CDC been chastised? No question. Can they get up off the mat? I think this will say a lot about Dr. Rochelle Walenski's leadership skills. Good leaders get up when knocked down and keep fighting. Things the CDC does - the good parts - are worth fighting for and regaining the public's trust. Right now CDC's rep is in the shitter and not just with it's management of the cruise industry as it relates to the public health. Long way to go to get out of that spot. It starts right now.

Let's give it a couple of weeks. I don't think the public has the degree of interest in this that we do so, maybe the CDC can skate even though they've screwed up a lot in the Pandemic. But among us, their cred is shot all to hell and Judge Merryday just affirmed FL's and our views that they aren't the agency we want telling the cruise lines how to operate safely and healthfully. The Healthy Sail Panel is an entity to be trusted in this matter, IMO. The problem with that is the Healthy Sail Panel is not a congressionally empowered agency like the CDC is. It really is too bad the CDC made such a mess of this.  

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It occurred to me today:  what gives this Judge the authority to approve or disapprove any CSO based on his interpretation of the science behind it.  If he is saying the CDC exceded it's statutory power by imposing a CSO, then how could they issue a new one only if a Judge who has no Statutory authority to issue health orders?  Either the CDC has the authority or it doesn't. And the fact that he constructed his order in such a way that there is nothing appealable until his temporary injunction goes into effect seems to be delaying the inevitable. 

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.........what gives this Judge the authority to approve or disapprove any CSO based on his interpretation of the science behind it.

In a general sense, federal judges have enormous power to interpret the law and make sure it comports with the US constitution. In this specific case (1) Judge Merryday interpreted the current laws governing Free pratique ..... essentially the license given to a ship to enter a port on the assurance that she is free from contagious diseases. (2) He ruled that HHS/CDC is neither granted the extent of power they usurped by imposing the CSO on the cruise industry in the US Constitution or by congress  (3) He concluded the CSO is a defacto law and CDC can't make laws. Congress does.

Next on the basis of the argument above, he enjoins the CSO then suspends it to July 18th giving the CDC a chance to clean up their act. He has leverage. He sets conditions including a demand that the CDC present an updated CSO that contains requirements that are within the law that limits what the CDC can and cannot do. He adds that the CDC can't just come up with requirements that aren't based on the current science, something they did in the CSO and have done frequently since the start of the pandemic. For example, the CDC offered a lot of stale science (i.e., not accounting for vaccines) as the underlying basis for many of the non-sensical regulations they imposed on cruise ships.

The judge is not making an "interpretation of the science" he is applying accepted standards that determine if a study is scientific. For example, the CDC presented as evidence to the court a report that a cruise ship is 62% more likely to experience a COVID outbreak than similar congregate settings like a prison, nursing home or a hospital. That study was not in the public domain or published, had not been peer-reviewed, two of several requirements for a study to be properly identified as scientific. It's simply not valid as proof or fact under those circumstances.

On the role of the judiciary: if you have the time and are interested you can go here and brush up on your civics.

https://www.crf-usa.org/images/pdf/challenge/The-Role-of-the-Judiciary.pdf

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16 minutes ago, smokeybandit said:

CDC wants an extra month (July 2 to August 2) to respond to the ruling.  Yet doesn't ask for an extension of the stay of the CSO.  Florida is OK with 2 weeks, but not a whole month.

 

https://storage.courtlistener.com/recap/gov.uscourts.flmd.388773/gov.uscourts.flmd.388773.93.0_1.pdf

I’d say not. They have had plenty of time to change things. 

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47 minutes ago, smokeybandit said:

CDC wants an extra month (July 2 to August 2) to respond to the ruling.  Yet doesn't ask for an extension of the stay of the CSO.  Florida is OK with 2 weeks, but not a whole month.

 

https://storage.courtlistener.com/recap/gov.uscourts.flmd.388773/gov.uscourts.flmd.388773.93.0_1.pdf

That is really interesting, I wonder if that was an oversight or intentional.  I also wonder if the Judge would remedy that on his own, in my experience mistakes like that are usually brought up and corrected at a hearing, which I assume there will be since it is a contested motion.

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4 hours ago, smokeybandit said:

Looks like the judge gave the CDC until July 22 to respond. Original date was July 2, CDC wanted August 2.

 

No (free) PDF is available yet to see how that impacts the July 18 D-Day for the CSO

Hope that is the last time this judge moves his goalpost for the CDC. They are stalling for as long as possible.

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Based on what we're seeing with both test cruises and 95%'ers that are being operated in full compliance with the CSO, whatever the CDC comes up with is going to be changes in the language of the current CSO to make it legal under the CDC's authority granted in 42 U.S.C. Section 264 Quarantine and Inspection Regulations to Control Communicable Disease.

At the onset of this thing I was skeptical that FL would prevail. As the arguments unfolded it became more apparent that they would and Merryday's ruling was pretty clear. CDC overreached among other things. If Merryday feels that a good faith effort is made by the CDC to adjust some of the language. He could simply vacate the injunction. Iwould hope in any rewrite they do that they are consulting with the cruise lines on some of the more onerous requirements of the CSO like test cruises and volumes of reports and legal standards for contracts. 

While it's true that after the CDC does its work and submits it to Merryday, there's a period of mediation to follow. There are two outcomes: (1) FL agrees to the changes and there is a settlement, (2) FL does not agree and it goes back to Merryday like last time.

I don't think Merryday wants to force a rewrite of decades of complex maritime law by enjoining the CSO and essentially sending an open ended set of unenforceable regulations back to Congress for a rewrite of parts of U.S.C. 42, Section 264. I have a gut feeling he will rule in favor of the CDC providing the CDC in it's rewrite meets Merryday's expectations. That might seem to leave FL out in the cold. That's how the cookie crumbles. He might throw them some crumbs. What that might be is uncertain.

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I still cannot see how a Federal Judge can rule that a Federal entity has exceded it's statutory authority and somehow limit that to a single State.  Therefore I think if the injunction takes effect, it will apply to all States, whether they are a party to this suit or not.  If that happens, I would guess that the cruise lines would use the recommendations of their own panel, to the extent allowed by State laws, getting around any issues as they are in Florida. However, I also don't think this Judge will want the far reaching consequences of making his temporary order permanent.   I think he is doing whatever he can to get the parties to settle,  but given the way Florida is digging it's heals in, I think the mediator has a difficult job.

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I just noticed this today and it really doesn't bear on FL V. Bacerra but there's no other good place to put it.

Governor Desantis let Florida's PH Emergency declaration expire last Saturday. The only thing I saw in the news is that his failure to extend it will eliminate compensation/reimbursement for telemedicine.  Apparently, the FL legislature will submit a bill to extend the financing for that "in the next session" whenever that is.

I suppose it isn't starling news and not in the category of "if it bleeds, it leads" journalism. OTH, if I have this right, there is a ton of stuff tied to it and the expiration of the PH emergency pulls the rug out from a lot of it. For example, let's say that Miami-Dade county discovers a cluster of COVID within cramped living quarters for migrant farm workers. The county PH agency is going to be restricted as to what mitigation measures they have at their disposal to do anything about it. The PH emergency was fundamental to giving the counties authority to do something like that.

Of course, although I don't know the details, when Desantis made the move a couple of weeks ago to forgive any COVID related fines or charges along with him previously saying the counties can't do anything that restricts mobility, closes businesses, requires masks, none of that stuff is authorized any longer. Same for schools that are doing summer school right now or summer camps. So, letting the declaration of a PH emergency expire last weekend may be a nothing burger from a standpoint of how residents and businesses might be affected. But when financing for COVID related projects, funded by the state or the feds, gets cut off there's an impact. I could see the same for health and safety protocols already put in place for summer school and camps  - we'll see what it is, I guess. Some journalist will pick up on a "catastrophe" related to this and pin it on Desantis.

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18 hours ago, JeffB said:

I just noticed this today and it really doesn't bear on FL V. Bacerra but there's no other good place to put it.

Governor Desantis let Florida's PH Emergency declaration expire last Saturday. The only thing I saw in the news is that his failure to extend it will eliminate compensation/reimbursement for telemedicine.  Apparently, the FL legislature will submit a bill to extend the financing for that "in the next session" whenever that is.

I suppose it isn't starling news and not in the category of "if it bleeds, it leads" journalism. OTH, if I have this right, there is a ton of stuff tied to it and the expiration of the PH emergency pulls the rug out from a lot of it. For example, let's say that Miami-Dade county discovers a cluster of COVID within cramped living quarters for migrant farm workers. The county PH agency is going to be restricted as to what mitigation measures they have at their disposal to do anything about it. The PH emergency was fundamental to giving the counties authority to do something like that.

Of course, although I don't know the details, when Desantis made the move a couple of weeks ago to forgive any COVID related fines or charges along with him previously saying the counties can't do anything that restricts mobility, closes businesses, requires masks, none of that stuff is authorized any longer. Same for schools that are doing summer school right now or summer camps. So, letting the declaration of a PH emergency expire last weekend may be a nothing burger from a standpoint of how residents and businesses might be affected. But when financing for COVID related projects, funded by the state or the feds, gets cut off there's an impact. I could see the same for health and safety protocols already put in place for summer school and camps  - we'll see what it is, I guess. Some journalist will pick up on a "catastrophe" related to this and pin it on Desantis.

I think I am right on this also in that the vax passport was part of this. The no passport statute was a part of the states Emergency Management Law and with the emergency now over in Florida This may now be a mute point. I think this because I seem to remember reading the law that this was the case. So if true then a business can now ask for proof of vax. Maybe, hopefully?, not sure!!

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47 minutes ago, cruisinghawg said:

the vax passport was part of this (the PHE)

I am also uncertain but I think that if Desanits had not advanced legislation to make his EO - which was issued under authority granted to him in the state's PHE - the EO ban on asking for prrof of vaccination would have also expired. 

But it's now law in the state of FL. It could be challenged but it would be an uphill road to do that.

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5 hours ago, JeffB said:

I am also uncertain but I think that if Desanits had not advanced legislation to make his EO - which was issued under authority granted to him in the state's PHE - the EO ban on asking for prrof of vaccination would have also expired. 

But it's now law in the state of FL. It could be challenged but it would be an uphill road to do that.

This is the governor's EO

https://www.flgov.com/wp-content/uploads/orders/2021/EO_21-81.pdf

Cannot find the statute that was adopted but the language was pretty much the same. I keep looking for language that says "during a called emergency".

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It does not matter what the the Desantis EO says. That is because Senate Bill SB2006, among other things, made it unlawful in the state of Florida for a business or school (I did not realize schools were included until I read the bill) to ask for proof of vaccination.

The Bill was passed by both houses of the FL legislature, forwarded to the governor to sign and he signed it on May 3rd, 2021. Also in the bill was a provision that cancelled all previously issued emergency orders effective July 1st, 2021.

Here's the wording for banning passports:

381.00316, F.S.; 141 prohibiting a business entity from requiring patrons 142 or customers to provide documentation certifying 143 vaccination against or recovery from COVID-19; 144 prohibiting governmental entities from requiring 145 persons to provide documentation certifying vaccination against or recovery from COVID-19; 147 prohibiting educational institutions from requiring 148 students or residents to provide documentation 149 certifying vaccination against or recovery from COVID150 19 

A couple of references: the bill itself (42 pages) and an announcement of the signing of the bill and it's intent (a lot clearer than the bill itself).

https://www.flsenate.gov/Session/Bill/2021/2006/BillText/er/PDF

https://www.flgov.com/2021/05/03/governor-ron-desantis-signs-landmark-legislation-to-ban-vaccine-passports-and-stem-government-overreach/ 

 

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Yes I know that, I was going to compare the language between the EO and the statute. Then supper called and had to go and punched submit. LOL But I read the entire bill when it was past and think it said this ALL goes away when the emergency is canceled. But I could be wrong. DeSantis even list movies, restaurants and sporting events as examples in his EO. I am thinkin this was his thought process as I personally do not think he would stop a cruise line from demanding a vax card.

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15 hours ago, cruisinghawg said:

But I read the entire bill when it was past and think it said this ALL goes away when the emergency is canceled.

I too had to read the language twice. My first read was the same as yours then I read it again and, although not as straight forward as one might like it, it says any EOs and all local COVID related restrictions will expire on July 1st. I read this to include the state's PHE under which all this stuff was issued. At that point the provisions of SB2006 - and these cover all manner of emergency preparedness of which a PHE is included - take effect.

The body of SB2006 and the announcement of Desantis' signing of it make it very clear that its intent is to prohibit government overreach, the kind of which occurred during the SARS2 Pandemic,  in the state of FL. The language in SB2006 also lays out the steps that are required for the Governor to declare a future PHE making it clear that balancing the costs of mitigation measures with the potential public health benefits is required. It also lays out who participates in deliberations and final decisions on these. Participants include both state public health officials, Commerce and Transportation Department officials.

It is a model piece of legislation that the US legislature needs to look closely at in coming up with legislation that more clearly limits the authority of the CDC to shutter an entire industry as it did to the Cruise Lines. I think in light of the Merryday ruling, th US Congress cannot duck responsibility to do that. Pretty sure something is already in the mill and has sponsorship that includes FL's TX's and AK's congressional reps.     

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12 minutes ago, dswallow said:

The CDC filed a motion for a stay of the Preliminary Injunction.

96_047023193317_MotionToStay.pdf (2150.com)
 

Accompanied by another declaration from Aimee Treffiletti.

96-1_047023193317_3rdDeclaration.pdf (2150.com)


https://www.2150.com/files/cc/8_21-cv-00839-SDM-AAS/

 

So the CDC is basically using the same outdated (subtle references to Diamond Princess) and completely invalid (Congress ratified the CSO) arguments that got shot down by the judge, then throws in the "variants" scare word.

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OK, great. Not unexpected although I thought the Merryday ruling was lock tight and I think the US Court of Appeals (USCA) will say the same thing and defer to the lower courts decision.

An apeal isn't a new trial. Becerra cannot introduce nw evidence or add addtional testimony. Reading the documents, they did just that. It is entirely possible that the appeal, once it is reviewed by the USCA, is heard and the defendants are told, sorry no dice. The Merryday ruling is affirmed.

So, what's the time lime? Lets go back to the original suit filed by the stat of FL. You'll recall that FL moved and was granted an expedited (emergency) hearing. That was more or less granted. The CDC lawyers presented their arguments, Merryday considered them in light of the state of FL's submissions and arguments and sent the CDC packing. Subsequently Merryday said you have until July 2nd to submit a rewrite of the CSO that conforms with your authority granted under U.S.C. 42, Chapter 264.  Then the CDC asked for an extension and Merry day gave them until 7/22. The clock is still ticking on that original FL request for an expedited hearing.

I'm not entirely sure but I think submitting an appeal makes everything Merryday instructed the CDC to do (rewrite the CSO) moot. It now moves to the USCA with the clock ticking and if the appeal fails, and I feel confident it will, Merryday will default to enjoin the CSO. This will turn oout to be a failed last ditch effort by the CDC in all or nothing sort of circumstance. The CDC will get NOTHING.

You'll recall Merryday's ruling included the conclusion that the FL suit would prevail on it's merits. Only a successful appeal can change that.  No way to predict but it is such a weak appeal, technically flawed (more testimony and more evidence submitted - can't do that) and the FL request for an exeditied hearing clock is still ticking. I suspect if it is a possibility, the USCA simply won't hear it..... I think that's how it works. The USCA can do that. It shuts down the CDC and invites Merryday to move forward with enjoing the CSO 

Given this chain of historical events in the case and what I think is the outcome of the appeal if it is even heard (see above) - go directly to jail, do not pass go - the CSO gets enjoined. It could be a couple of days, weeks or months and I think the former - in weeks rather than days -  is more likely.

Look, this is typical legal maneuvering so, fine. Becerra wants to drag this out until the CSO expires and he and the CDC don't have egg on their faces.  But on the merits, its's ridiculous and a waste of the court's time. Gut feeling tells me the judge sitting on this case at the USCA will see that.

Let's move along here people.   

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3 hours ago, dswallow said:

Accompanied by another declaration from Aimee Treffiletti.

 

Re: the Freedom test cruise:

 

image.png.c29abfa974f34c880dd0c089927558cc.png

 

There were positive test results? I highly doubt this. I'll just assume these were "pretend" positives for the sake of the exercise. And separating unvaccinated from vaccinated during testing?  Yeah, that will work GREAT when testing kids.  Good luck separating me from my kid while he's being tested.


And doesn't it hurt their argument that despite all those issues listed in their two examples, they still granted the CSC? 

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You can't make stuff like this up. If it weren't so detrimental to one of the globe's major economic engines and provider of good jobs in countries where nothing like that is available and your typical cruise line, service level employees come from, it would be absolutely hilarious.

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I am probably going to get flamed for this, but I think the stay of the preliminary injunction will be granted.  Since Florida has not shown that the CSO is harming the restart any more than their law regarding vaccinations, especially since everything I have seen shows that the overwhelming majority of possible cruise passengers would prefer 100% vaccinated cruises, which Florida itself is preventing.  I think that the success of ships moved from US ports currently sailing show that.  Everyone keeps saying that the spread model does not take into account the vaccine.  First, if the ships are not allowed to ask people for proof of vaccination, they will have no idea of the percentage of the ships population are vaccinated, so a model would be impossible. Second, the study is being used to show that the possible spread on a ship is different from the other scenarios so any change in the percentage of spread taking the vaccine into account, whatever that is, would be higher on a ship than the other scenarios, not as a specific model of how the virus will spread on a particular ship.  I also believe that their view of the scope of their authority is correct, despite the Judge's detailed history lesson.  In fact, I see his ruling as inconsistent, they don't have the authority unless they use it in a way he agrees with?  And I agree with the fact that congress has recognized the authority by adopting a law that relies on the CSO as part of the law.  I have learned not to depend on predictions of what a Judge or Jury will decide, so this is not a prediction, just an opinion.

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All we can do is sit back and watch this unfold.  Wild times to be a cruiser.

I have some thoughts on the matter but I'll need to watch some more Perry Mason reruns to firm up my legal stance.  Is Matlock on netflix?  Hmmm.  Maybe I can accelerate my TV law degree by listening in my sleep.  If only there was a jury in play then we could leverage some Bull - which all of this kind of is. 

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12 minutes ago, twangster said:

All we can do is sit back and watch this unfold.  Wild times to be a cruiser.

I have some thoughts on the matter but I'll need to watch some more Perry Mason reruns to firm up my legal stance.  Is Matlock on netflix?  Hmmm.  Maybe I can accelerate my TV law degree by listening in my sleep.  If only there was a jury in play then we could leverage some Bull - which all of this kind of is. 

They actually use Matlock clips in CLE as examples of how far from reality TV law shows are.  From the timeline to procedure, they are so far from reality it get funny.  But honestly, in this case everyone's opinion matters equally, because we have no idea what is actually going to happen.

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