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DeSantis/Florida wins prelim injunction over CDC


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This whole thing just makes me believe that the CSO will stand until at least Nov 1st. Since RCG has opted for test cruises, the ships on the docket are fine but I worry about everything else. I don't think the industry will be shuttered again but the restart will become a bit slower. I believe the CDC will force these protocols to be in place for years. I am so tired of this whole pandemic, rather epidemic that has changed not only what we do but how we do things. I am currently running a restaurant with no social distancing, mask or enhanced cleaning. Yet one of the cleanest forms of entertainment/vacation has to waste resources just to be subjected to the draconian practices of the CDC.

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2 hours ago, WAAAYTOOO said:

Does anyone know the makeup of the relevant USCA and whether it leans one political direction or the other ? 


11th Circuit Court of Appeals:


1 appointed by Clinton

4 appointed by Obama

1 appointed by GW Bush (Bush appointees have a habit of going Left)

6 appointed by Trump (thanks CGTLH for noticing my miscount)

 

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45 minutes ago, ChrisK2793 said:


11th Circuit Court of Appeals:


1 appointed by Clinton

4 appointed by Obama

1 appointed by GW Bush (Bush appointees have a habit of going Left)

5 appointed by Trump

 

One judge short, 6 were appointed by Trump.

Ref: https://ballotpedia.org/United_States_Court_of_Appeals_for_the_Eleventh_Circuit

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13 hours ago, MrMarc said:

I think the stay of the preliminary injunction will be granted. 

Certainly your guess is as good as mine. But I don't think the stay will be granted. Remember, this is not a re-trial. The defendant moves for an appeal in the district USCA (step one). They submit documents supporting the request for the stay to the court (step 2) Either the entire court or a single judge can review the material and make a decision sequentially on both steps. Based on what I know of that submission, I've already argued it is a weak appeal (step one). On that basis alone and if I'm correct about the strength of the appeal, the USCA will defer to Judge Merryday's ruling and not entertain step 2.

While the defendant can submit documents and testimony to support a stay, I don't think the USCA can move ahead to consider that if the Judge(s) rule that the grounds for an appeal that I listed in my previous post are not satisfied and I don't think they will be.

13 hours ago, MrMarc said:

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 disagree with this argument. Let's take a look at the argument that congress has recognized the (CDC's) authority by adopting a law that relies on the CSO as part of the law. Judge Merryday shot this argument down when the CDC's lawyers presented it. Why he did that is contained in his ruling. There was some case law cited on this specific argument in Merryday's ruling. The precedent was established in several other cases where similar arguments were presented to the court and the rulings did not support them.

Let's look at your scope of authority argument. You are correct. He provided a history lesson in his ruling but that was for the purpose of illuminating the precedent setting case law that limited the CDC's authority. Merryday ruled that precedent certainly did not authorize the CDC to shut down an entire industry's shipping operations for the period of time that they did. This was one of the five claims FL made in it's original law suit and it was firmly supported in Merryday's ruling. I will grant that the USCA's roll is to determine if the law was interpreted and applied correctly so, Merryday's ruling in this specific instance is subject to review.   

Next you ask, " they don't have the authority unless they use it in a way he agrees with?" Yes, the role of a federal judge is to do precisely what he did....... interpret the law using precedent, where it is available, to determine, in this case if the CDC has the authority to do what they did. Merryday ruled they did not and what they did do was, in fact, create law, the CSO, that only the US congress has the authority to make. This is a classic, and entirely correct, interpretation of the separation of powers provisions in the US Constitution and laws between the 4 branches of government.

I'm arguing that:

  • Defendant's haven't presented sufficient evidence that the Merryday trial wasn't fair and/or he interpreted the law incorrectly to grant the appeal (step one). Pretty sure they have to cross that bar before a judge will entertain and review documents supporting the CDC's request for a stay
  • Failing that, a request for a stay can't be granted (step 2)
  • The clock is ticking on FL's request to Judge Merryday for an emergency hearing. For all intent and purpose, that was granted. Since the CDC gave Merryday the finger, refusing to rewrite a CSO that comported with existing law, and filed an appeal with the USCA, if the appeal is denied, and I think it will be, and a stay not granted, the CSO becomes unenforceable recommendations in 11 days on July 18th.     

TBF, my argument has no more or no less value than @MrMarc's. JMO, YMMV.

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Ultimately this has just demonstrated the complete futility of a legal/government system that has become so incredibly bloated that it is non functional.

A government agency puts in place rules, that subsequently may not have been legal but nonetheless shut down an industry for over a year ...

A state government sued said agency asking for an "emergency injunction" ... months later we are still waiting on the endless waffling to end ...

Meanwhile the original emergency that is the basis for the whole thing basically ended and yet the legal battles are still endlessly winding along ...

And there is confusion over why people have increasingly no trust in politicians and lawyers (and the press for making this into a nightmare with conflicting over blown stories).

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12 hours ago, ChrisK2793 said:

You’re correct ……. I miscounted the Trump judges lol …… I thought 11 total didn’t sound right 

 

There are actually 21 judges - 12 appointed by R presidents and 9 appointed by D presidents

1 - Ford

1 - Reagan

3 - G H W Bush

1 - G W Bush - William H Pryor is the chief justice and was on Trump's short list for SCOTUS

6 - Trump

1 - Carter

3 - Clinton

5 - Obama

https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Eleventh_Circuit

The court has twelve seats for active judges, numbered in the order in which they were initially filled. Judges who assume senior status enter a kind of retirement in which they remain on the bench, while vacating their seats, thus allowing the president to appoint new judges to fill their seats.

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Correction: In my post above I incorrectly sequenced how the USCA will review the defendant's appeal. The first step is to review the request for a stay of the injunction pending a review of the appeal. Reverse those two steps. The motion for a stay gets reviewed first  

The CDC's basis of the motion for a stay is that things are going along smoothly with regards to the cruise lines restarting in compliance with the CSO, i.e., the cruise lines operations  make the case for the CSO. The CDC bolsters this claim with their continued claim that cruise ships are inherently riskier, wrt disease transmission, than other forms of public conveyance. The emerging facts don't bear that claim out. 

Other than those stubborn facts that keep arising and causing the CDC's lawyers problems, there is nothing fundamentally wrong with this basis or documentation that bolsters it. Where there is another obvious problem is the restrictions on full cruise ship operations both in the past (the FL lawsuit notes that harm was done to the state and Meryyday concurred) and going forward. These will continue under the CSO with the attendant loss of revenue to FL unless that document is enjoined according to Merryday's ruling.

More precisely, if the cruise lines had been able to restart almost 6 months ago under the guidelines of the Healthy Sail Panel - which have very obviously worked outside the US - none of the economically costly cold and warm storage of cruise ships would have happened. None of the staggering global impact on the economic engine that the cruise line industry is would have happened. A more robust and less expensive, less complicated cruise ship restart under the Healthy Sail Plan alone, without the CDC riding herd, would have occurred. More cruises from FL, the more the tax revenue. More cruise ships that restart the quicker the cruise lines reverse the global economic and unemployment nightmare created by the CDC's unnecessary and unlawful NSO and subsequently the CDC's CSO. 

A stay continues that unfair and costly happenstance until the appeal is reviewed and acted upon. My previous argument that the CDC's appeal is weak and will fail on it's own makes a successful appeal on review by the USCA unlikely. For heavens sake, don't grant a stay to prolong this craziness.  

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3 hours ago, jticarruthers said:

Meanwhile the original emergency that is the basis for the whole thing basically ended and yet the legal battles are still endlessly winding along ...

This is the part that I think is the basis of much of the disagreement now.  While I wish I could see things that way, I really cannot.  I think if we take that view, we could easily head downhill very quickly.  I think it would be so sad if way abandoned the race because we thought we were at the finish line, when the actual finish line was actually just a little farther ahead.

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14 minutes ago, MrMarc said:

This is the part that I think is the basis of much of the disagreement now.  While I wish I could see things that way, I really cannot.  I think if we take that view, we could easily head downhill very quickly.  I think it would be so sad if way abandoned the race because we thought we were at the finish line, when the actual finish line was actually just a little farther ahead.

Or is the finish line continually being extended because the race organizers don't want the race to end?

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21 minutes ago, MrMarc said:

This is the part that I think is the basis of much of the disagreement now.  While I wish I could see things that way, I really cannot.  I think if we take that view, we could easily head downhill very quickly.  I think it would be so sad if way abandoned the race because we thought we were at the finish line, when the actual finish line was actually just a little farther ahead.

Like wait...just two more weeks? Is this another 15 days to slow the spread? 

 

 

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39 minutes ago, smokeybandit said:

Hilarious.  That's only 3 pages, but that's one hell of a smackdown by the judge.

 

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But that still does not explain why they would have the power if he approved of how they used it.  He even states that he gave them a chance to create a new CSO that he thought was reasonable.  So either they have the power to create a CSO or they don't.  So he is effectively saying is that if he does not agree with their CSO they are misusing their power, but if he agrees with it it is suddenly within their power.  So it really is about what health precautions against COVID-19 are necessary or helpful. If not, then why the "invitation" to write a new one?

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11 minutes ago, WAAAYTOOO said:

So what does this mean ?  CSO still in effect ?  I thought this was going to the USCA ?  Sorry....not much legal knowledge, here.

All this means is the CDC can't stay the CSO while they appeal to the USCA. They wanted to keep the CSO in effect until the appeal was heard. Judge Merryday said New York No GIF by HULU

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9 hours ago, JeffB said:

More precisely, if the cruise lines had been able to restart almost 6 months ago under the guidelines of the Healthy Sail Panel - which have very obviously worked outside the US - none of the economically costly cold and warm storage of cruise ships would have happened. 

This right here is what has bothered me for months and still makes me so frustrated with the CDC and anyone who defends the CSO a under the guise of health safety. The lines had facts on their side of protocols working from outside the US...not guesses (even very educated guesses like for instance “6 feet for proper distancing”). But instead of looking at those facts of successful protocols that lines were executing without outbreaks in order to maintain positive PR/protect their fragile brands after the early pandemic, the CDC and naysayers still believed the myth that cruises were not capable of sailing safely. Then came the test cruises, etc, etc. 

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An important moment but it's still not clear how this changes very much for Florida cruises.

The pandemic in general is not over and it's not clear what the impacts of future variants will be.  

The Florida law that prevents a cruise line from cruising safely with vaccinations as a tool in their toolbox is not immediately impacted by this case with the CDC.

For Royal Caribbean International at every step they've taken a path that allows unvaccinated children so it's clear they are trying to accommodate families even in states where this legal case has no immediate impact.  They've also quietly allowed some exemptions beyond children. 

Clearly Royal is not trying to deny service based on vaccination status even in Nassau where it could have, that's bad for business and Royal knows it.   Some are trying to make this look like a binary situation, all vax or no vax but it's not for Royal and never has been.

That's why the Florida law is a law that isn't required.  It's a law to make it look like government is doing something when in fact it's just more government overreach while everyone is celebrating this judge who just slapped down a government for overreaching its power.

In an ideal world a cruise line would be able to determine safe protocols based on the ratio of vaccinated and unvaccinated and they could adjust protocols as new variants emerge and other's go away.  Is that 85% today? 80% a month from now? 50% six months from now? That's for the proper experts to decide, not a doomsday federal agency, not an authoritarian state government and not the general public.  

The pandemic isn't over.  Delta won't be the last variant.  Vaccines are the path to safe cruising without a 100% vax requirement.  Cruise lines like Royal are not trying to establish an absolute vaccine requirement.  That's doesn't change with this latest step in the case against the CDC.

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3 hours ago, twangster said:

An important moment but it's still not clear how this changes very much for Florida cruises.

The pandemic in general is not over and it's not clear what the impacts of future variants will be.  

The Florida law that prevents a cruise line from cruising safely with vaccinations as a tool in their toolbox is not immediately impacted by this case with the CDC.

For Royal Caribbean International at every step they've taken a path that allows unvaccinated children so it's clear they are trying to accommodate families even in states where this legal case has no immediate impact.  They've also quietly allowed some exemptions beyond children. 

Clearly Royal is not trying to deny service based on vaccination status even in Nassau where it could have, that's bad for business and Royal knows it.   Some are trying to make this look like a binary situation, all vax or no vax but it's not for Royal and never has been.

That's why the Florida law is a law that isn't required.  It's a law to make it look like government is doing something when in fact it's just more government overreach while everyone is celebrating this judge who just slapped down a government for overreaching its power.

In an ideal world a cruise line would be able to determine safe protocols based on the ratio of vaccinated and unvaccinated and they could adjust protocols as new variants emerge and other's go away.  Is that 85% today? 80% a month from now? 50% six months from now? That's for the proper experts to decide, not a doomsday federal agency, not an authoritarian state government and not the general public.  

The pandemic isn't over.  Delta won't be the last variant.  Vaccines are the path to safe cruising without a 100% vax requirement.  Cruise lines like Royal are not trying to establish an absolute vaccine requirement.  That's doesn't change with this latest step in the case against the CDC.

Twangster, I very much respect your knowledge of the cruise industry, but if you are trying to say that the Florida law over vaccine requirement is a greater hurdle than the CSO, then I think that is a really flawed take.
 

Although it’s clearly not in line with RCLs ideal situation, they were able to manage through this law with the Vax/No Vax zones and sail last weekend at 86% vaccination rate. Meanwhile, because of the CSO they have a ridiculous amount of expensive red tape like test cruises and port agreements, and a requirement for vaccinated passengers to wear masks inside (despite that being a complete break from the guidance the CDC has given indoors while on land if vaccinated). 
 

To be clear, I am not defending the Fla law, but to suggest it’s a bigger impediment to get sailing again vs the CSO is just silly if you look at the facts. 

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So for the lay person here I just want to understand where we are now ...

The CSO as it stand turns into a guideline on 12:01am July 18th, and the CDC is currently appealing it but has been denied an injunction to stop it.

So if they can't get it heard by the appellate courts by then, the DSL becomes a guideline, and all the red tape of test cruises and so forth in FL goes away and the cruise industry can regulate themselves on the basis of dealing with a Covid outbreak and sailing safely?

What happens to other states and territories like Alaska Cruises and cruises out of Puerto Rico in the caribbean? Does the CSO also turn into a guideline for them?

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The preliminary injunction finds that in the present scheme regulating the cruise ship industry CDC has acted athwart the Administrative Procedure Act and exercised authority not granted to CDC by statute. CDC’s motion (Doc. 96) for a stay — a stay that would serve to extend the unwarranted, unprecedented, and injurious exercise of governmental power by one person, the Director of CDC — is DENIED.

 

I thought that it was great that he called out the Director of the CDC in his brief and that he stated the CDC had no authority granted to them by any statute to do anything they have been doing. 

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30 minutes ago, Justwanttocruise said:

What happens to other states and territories like Alaska Cruises and cruises out of Puerto Rico in the caribbean? Does the CSO also turn into a guideline for them?

In my opinion as I am no legal expert, no...as the lawsuit was Florida vs the CDC. Other states will need to do the as same Florida.

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3 hours ago, Justwanttocruise said:

What happens to other states and territories like Alaska Cruises and cruises out of Puerto Rico in the caribbean? Does the CSO also turn into a guideline for them?

My understanding is the injunction only applies to Florida ports. So Puerto Rico or Seattle departures unaffected and would still be subject to the CSO

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3 hours ago, Justwanttocruise said:

What happens to other states and territories like Alaska Cruises and cruises out of Puerto Rico in the caribbean? Does the CSO also turn into a guideline for them?

The injunction, as written, prevents the CSO from being enforced on cruises that go from, to, or visit a Florida port. This could affect sailings from Baltimore and Port Liberty that visit Port Canaveral (and sailings from other East Coast ports if any visit a Florida port), but otherwise leaves the CSO in place everywhere else. Then the case proceeds on its merits and the outcome could involve the CSO being invalidated completely, everywhere, but that will be later. On July 18, 2021, as things currently stand, it's that preliminary injunction which goes into effect while the case proceeds.

Other jurisdictions presumably could choose to file suit as well, or to seek whatever other remedies may be available while this case continues. It may also open a door for the CDC to relax things a bit elsewhere, ostensibly so the CDC could argue how nice they're being, et. al. Who knows where things go next. I think it's clear the judge expects the CDC to appeal the preliminary injunction, too. So at the moment, maybe we just have to wait until July 18.

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5 hours ago, DunwoodyDad said:

Twangster, I very much respect your knowledge of the cruise industry, but if you are trying to say that the Florida law over vaccine requirement is a greater hurdle than the CSO, then I think that is a really flawed take.
 

Although it’s clearly not in line with RCLs ideal situation, they were able to manage through this law with the Vax/No Vax zones and sail last weekend at 86% vaccination rate. Meanwhile, because of the CSO they have a ridiculous amount of expensive red tape like test cruises and port agreements, and a requirement for vaccinated passengers to wear masks inside (despite that being a complete break from the guidance the CDC has given indoors while on land if vaccinated). 
 

To be clear, I am not defending the Fla law, but to suggest it’s a bigger impediment to get sailing again vs the CSO is just silly if you look at the facts. 

I don't recall saying SB2006 is a bigger screw up than the CSO is/was.  If that is how my post read I apologize.

The cruise lines have navigated the CSO and SB2006 and they have been able to cruise.  That outcome doesn't justify either the CSO or SB2006.

Both the CSO and SB2006 are example of government overreach.  SB2006 greatly complicates the cruise lines having insight into guest booking trends and how they need to or can adapt protocols to reflect the makeup of cruise manifests next week, next month, 3 months and 6 months from now. 

Government laws and regulations are fixed and not agile or flexible.  They don't adapt as this situation changes.  Right now the situation is changing rapidly yet with one arm held behind their back by the CSO and one arm tied with a rope by SB2006 cruise lines are facing substantially more effort to make cruises work.    

It doesn't have to be this way.  Government could do what it does best, get out of the way.  That applies equally to the federal and state governments. 

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