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US Appeals court lifts CDC cruise ship restrictions in win for florida


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SCOTUS and Thomas were not involved. The 11th Circuit reversed itself “sua sponte” according to the order, which means the judges did it on their own. They must have realized they made a significant error of law in the stay order and wanted to fix it before SCOTUS overruled them. 
 

Here’s the SCOTUS docket with no rulings noted as of now: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21a5.html

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Michael Bayley just posted Reuters article. 
 

A federal appeals court late on Friday reversed course and let stand a lower court order prohibiting the U.S. Centers for Disease Control and Prevention (CDC) from enforcing coronavirus-related cruise ship restrictions in Florida.

I can’t link it. 
 

Found a yahoo link

https://www.google.com/amp/s/news.yahoo.com/amphtml/1-u-appeals-court-lifts-223920905.html

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After looking at the Court of Appeals Docket sheet, to me it seems that Florida's brief changed their minds.  However, I find it strange that the decision was made with no hearing or even scheduling for briefs or responses.  This had to come as a gut shot to the CDC attorneys and the cruise lines.  At this point I would guess that what they really want is consistency and predictability, no matter what the particular rules were.  Right now they have neither.  Now unvaccinated passengers will be mad if they don't change the protocols, and vaccinated passengers will be mad if they do.  To me this seems more harmful to the industry than the CSO ever was or would have been.

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36 minutes ago, MrMarc said:

Now the CDC will file an appeal to The Supreme Court or to the full 11th Court of Appeals (en banc).  So it is  like a chess-tennis mash up.  Except no one really knows who will make the next move or who will the ball next.

You are obviously more adept at reading and interpreting the language of law than I, but I think I read where in the appeal to the SCOTUS it stated the entire court was not available.

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17 minutes ago, cruisinghawg said:

You are obviously more adept at reading and interpreting the language of law than I, but I think I read where in the appeal to the SCOTUS it stated the entire court was not available.

not necessarily.  I missed that footnote and you are correct.  It is not available pursuant to the RUles of the Appelate Court.:

11th Cir. R. 35-4 Matters Not Considered En Banc. A petition for rehearing en banc tendered with respect to any of the following orders will not be considered by the court en banc, but will be referred as a motion for reconsideration to the judge or panel that entered the order sought to be reheard: (a) Administrative or interim orders, including but not limited to orders ruling on requests for the following relief: stay or injunction pending appeal; appointment of counsel; leave to appeal in forma pauperis; and, permission to appeal when an appeal is within the court’s discretion.

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10 minutes ago, MrMarc said:

not necessarily.  I missed that footnote and you are correct.  It is not available pursuant to the RUles of the Appelate Court.:

11th Cir. R. 35-4 Matters Not Considered En Banc. A petition for rehearing en banc tendered with respect to any of the following orders will not be considered by the court en banc, but will be referred as a motion for reconsideration to the judge or panel that entered the order sought to be reheard: (a) Administrative or interim orders, including but not limited to orders ruling on requests for the following relief: stay or injunction pending appeal; appointment of counsel; leave to appeal in forma pauperis; and, permission to appeal when an appeal is within the court’s discretion.

Do you think the 3 judges of the 11th Circuit knew what would happened when the state appealed to SCOTUS?

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1 hour ago, cruisinghawg said:

Do you think the 3 judges of the 11th Circuit knew what would happened when the state appealed to SCOTUS?

I honestly have no idea.  Truthfully I am totally baffled by this.  I never practiced at this level, and it's been a long time.  However it seems very strange to me.  Courts don't like being overruled,  but I never had one overrule itself this way.  This feels more like politics than law to me.

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52 minutes ago, MrMarc said:

This feels more like politics than law to me.

 

32 minutes ago, WAAAYTOOO said:

It seems to me (as a totally NON-lawyer observer) that the 3-judge panel knew they were going to get their little pee-pees slapped.  Forgive the use of technical legal jargon.

I think these two together about sum it up.

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Even if the appeal is heard and denied I do not see Royal changing anything drastically in the near future. I believe that if the appeal is denied then it will be a tough go for the CDC on any future appeals. The only thing I think that will change some protocols is if Royal opens up more capacity on the ships and bookings do not increase to match. Then they will look to see what the current passenger experience is causing the issue and change it.

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11 hours ago, dswallow said:

So... change the thread title, maybe? ?

I feel like I'm watching a daytime legal soap opera these days.

 

All the filings...
US Court of Appeals, 11th District, Case 12243, Florida v. HHS, CDC (2150.com)

I know that legal proceedings are complex but this one is exceedingly hard to follow with so many motions, appeals and U-turns. That there are also two tracks in the proceedings, the appeal track that the CDC took and the pending litigation of FL's original suit. That makes following the cases doubly hard.

I have had an off-line conversation via PM with @dswallowon the chain of events - trying to put them in order and make sense of it. He's got it right. The litigation of the original complaint (the FL v. Bacerra, et. al) hasn't taken place yet but will on August 12th before Judge Merryday. The appeal track has concluded with the CDC losing its appeal to the 11th Circuit where they asked  the 11th Circuit to stay Merryday's ruling. 

To recap (in my own head ?) ....... FL's request for a Preliminary Injunction was heard in Merryday's court, he granted it then stayed it pending a re-write of the CSO to comport with CDC's lawful authority. The CDC appealed that ruling to the 11th Circuit USCOA. That court granted the CDC's appeal, setting aside Merryday's ruling. 6d later the 11th Circuit reversed itself and vacated the 11th Circuits stay of the Preliminary Injunction issued by Merryday's court. 

The reason it appears as @danv3points out is that the 3 judges probably realized they made serious errors in interpreting the law and wanted to fix it in anticipation that the case would be heard by SCOTUS. That realization appears to have come from a brief that FL filed with the 11th Circuit in response to the CDC's appeal. SCOTUS has not yet heard the case either by a single Justice, Clarence Thomas, or the full SCOTUS hearing it. Justice Thomas may have been involved in the 11th Circuit's reversal though....??? 

What is unclear to me at this point is the status of the CSO. I don't think it is cut and dried that the CSO is no longer enforceable in FL. I would think that determination of enforceability would be made in Merryday's Court that will convene on August 12th. What is also unclear to me is whether or not a final ruling in favor of FL by either the Merryday court or SCOTUS renders the CSO unenforceable at all US ports or just FL ports.  Asking @danv3or @dswallowto offer their opinions.

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38 minutes ago, Jill said:

The importance of this to me is the future. Does this now tie the CDC’s hands and not allow them to shut the cruise lines down again? 

Its not over yet ......... Matt, we again now have two threads on this subject. Can you merge them.

 

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57 minutes ago, cruisinghawg said:

Again I am no legal eagle but one thing I noticed in the filing to SCOTUS was the case law that FL produced backing its claim. It seemed quite lengthy to a novice but impressive. I agree that this does look political which is sad that we have potentially come to this.  

I agree it is political but I don't think it's "sad." As I keep hammering home, aside from the complaint of economic harm that was done to the state of FL by the NSO and CSO, FL's claim asserts that an agency of the executive branch - the CDC - made quasi law in the from of the CSO usurping the powers of the legislative branch in doing so. 

What's important about that is over the last 20 or so years executive branch agencies that constitutionally have no law making authority and are unaccountable to the voters have assumed all kinds of power normally vested in the legislative branch. It's not just HHS/CDC.

The Judges hearing arguments in this case and then ruling have made it crystal clear in those rulings that the CDC exceeded it's lawful powers granted by the legislative branch. It's a shot across the bow of a wide range of US government executive agencies to knock that stuff off. Congress makes the laws, the executive branch carries them out.  The forefathers are smiling today.

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48 minutes ago, JeffB said:

I agree it is political but I don't think it's "sad." As I keep hammering home, aside from the complaint of economic harm that was done to the state of FL by the NSO and CSO, FL's claim asserts that an agency of the executive branch - the CDC - made quasi law in the from of the CSO usurping the powers of the legislative branch in doing so. 

What's important about that is over the last 20 or so years executive branch agencies that constitutionally have no law making authority and are unaccountable to the voters have assumed all kinds of power normally vested in the legislative branch. It's not just HHS/CDC.

The Judges hearing arguments in this case and then ruling have made it crystal clear in those rulings that the CDC exceeded it's lawful powers granted by the legislative branch. It's a shot across the bow of a wide range of US government executive agencies to knock that stuff off. Congress makes the laws, the executive branch carries them out.  The forefathers are smiling today.

I agree but my "sad" comment was the fact that the courts seemed to not be blind in some cases. Maybe its just me but it seems when a case comes up that may have our attention we start looking at who appointed the judge or judges.

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20 minutes ago, cruisinghawg said:

I agree but my "sad" comment was the fact that the courts seemed to not be blind in some cases. Maybe its just me but it seems when a case comes up that may have our attention we start looking at who appointed the judge or judges.

I would say "sad" that this is the way the court system operates not that the system is being forced to publicly expose itself (albeit to a very small slice of society that has interest in the case).

To summarize the summary (in my words not necessarily accurately) -

After months of legal wrangling, how many hundreds of thousands of hours of legal fees being incurred, etc. we still HAVE NOT EVEN HEARD THE CASE ????

All this back and forth is just about whether or not the case is strong enough to suggest FL might win and then whether that means FL should proactively be protected to limit the damages if they do win.

And to top it off three of the "senior" legal minds are called in to listen to the appeal, rule one way and then pop up a week later to say "you know what we f'd that up so bad we are going to flip flop and go the other way" ....

If it wasn't about a subject I am really interested in it would almost be funny.

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15 hours ago, smokeybandit said:

That quoted health law expert has previously said the lawsuit never had any chance and has had a pretty anti cruising stance

Well stated. The Miami Herald is especially anti-cruise, and that particular writer loves to harp on anything negative having to do with the cruise industry.

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10 minutes ago, Matt said:

Well stated. The Miami Herald is especially anti-cruise, and that particular writer loves to harp on anything negative having to do with the cruise industry.

That’s crazy. Think of the amount of money the cruise industry brings to South Florida and Miami.  Why bite the hand that feeds you. 

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Miami and South Florida will take the money from the cruise industry but doesn’t mean they have to like it!  If they can get federal funds, they’ll take that as well. 
 

This whole Appeals Court fiasco was sad and disappointing last week and now after yesterday is a joke. 
 

Like him or not, FL Governor DeSantis went to Harvard Law and practiced law with the Navy JAG.  So he actually knows the legal system.  

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20 minutes ago, 904Duval said:

This whole Appeals Court fiasco was sad and disappointing last week and now after yesterday is a joke. 

Let me be clear, I'm not a lawyer but I follow constitutional law and SCOTUS rulings that deal with it closely. So, when you read my posts where I try to explain what's going on, these are the ramblings of a rank amateur. This stuff is very complex, filled with legal jargon that lawyers go to law school for 4 years to learn. Moreover constitutional law is a specialty field like cardiology is in the medical field. 

Having said that, I'd urge people reading this thread to not be "disappointed" by what has transpired. In this seemingly unimportant case you are seeing exactly how the framers wanted American style democracy in a republic to work. To wit: The framers anticipated creeping over-reach by presidents and his appointed members of the executive branch. The way to limit that was with a powerful judicial branch. Among other responsibilities but probably their primary one, SCOTUS interprets constitutional issues.

Very early on in the FL law suit Judge Merryday picked up that this was going to involve constitutional issues. His 124 page ruling reflects that. Now it looks like the 11th Circuit judges see that too and that, as one of the documents released yesterday states, (paraphrased) "in anticipation that this case will be heard by SCOTUS" the appellant's (CDC) appeal is denied.

...... and yes, members of congress and the president know how important their appointment of federal judges and supreme court justices is in carrying out their fundamental believes about American democracy and the role of government in it. Of course, we expect these jurists to be "blind" to everything but the law. Sometimes they are sometimes they are not. In this case, and IMO, the judges involved adjudicating the FL law suit are ruling in strict accordance with existing law and importantly leaning a bit to the right on the constitutional issues involved - separation of powers.

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3 hours ago, JeffB said:

I know that legal proceedings are complex but this one is exceedingly hard to follow with so many motions, appeals and U-turns. That there are also two tracks in the proceedings, the appeal track that the CDC took and the pending litigation of FL's original suit. That makes following the cases doubly hard.

I have had an off-line conversation via PM with @dswallowon the chain of events - trying to put them in order and make sense of it. He's got it right. The litigation of the original complaint (the FL v. Bacerra, et. al) hasn't taken place yet but will on August 12th before Judge Merryday. The appeal track has concluded with the CDC losing its appeal to the 11th Circuit where they asked  the 11th Circuit to stay Merryday's ruling. 

To recap (in my own head ?) ....... FL's request for a Preliminary Injunction was heard in Merryday's court, he granted it then stayed it pending a re-write of the CSO to comport with CDC's lawful authority. The CDC appealed that ruling to the 11th Circuit USCOA. That court granted the CDC's appeal, setting aside Merryday's ruling. 6d later the 11th Circuit reversed itself and vacated the 11th Circuits stay of the Preliminary Injunction issued by Merryday's court. 

The reason it appears as @danv3points out is that the 3 judges probably realized they made serious errors in interpreting the law and wanted to fix it in anticipation that the case would be heard by SCOTUS. That realization appears to have come from a brief that FL filed with the 11th Circuit in response to the CDC's appeal. SCOTUS has not yet heard the case either by a single Justice, Clarence Thomas, or the full SCOTUS hearing it. Justice Thomas may have been involved in the 11th Circuit's reversal though....??? 

What is unclear to me at this point is the status of the CSO. I don't think it is cut and dried that the CSO is no longer enforceable in FL. I would think that determination of enforceability would be made in Merryday's Court that will convene on August 12th. What is also unclear to me is whether or not a final ruling in favor of FL by either the Merryday court or SCOTUS renders the CSO unenforceable at all US ports or just FL ports.  Asking @danv3or @dswallowto offer their opinions.

I don't think the action in the 11th Circuit is over.  CDC appealed Merryday's PI ruling.  All the 11th Circuit has ruled on to date was the CDC's motion to stay the PI during the appeal.  The appeal of the PI itself is ongoing.  CDC's brief is due September 1.  https://www.2150.com/files/cc/USCA11-21-12243/23_011111857305_BriefingNotice.pdf  Then Florida will respond and CDC will reply to that response.  Then an argument will be scheduled.  That's looking to me like mid- to late-October unless the parties and the court accelerate things considerably.  

While Merryday might issue an order clarifying the status of his PI now, I think that because his PI was to go into effect on July 18, he declined to stay it, and then the 11th Circuit (eventually) also declined to stay it, that means that Merryday's ruling is now in effect.  Practically, I don't think that matters, because the cruiselines aren't going to rush out and start ignoring CDC's guidance.  Very little should change.

As far as I can tell the only thing happening on August 12 in the district court is that CDC will file its answer to Florida's complaint: https://storage.courtlistener.com/recap/gov.uscourts.flmd.388773/gov.uscourts.flmd.388773.103.0.pdf  They will deny everything that's relevant, and this will not be a very meaningful document.  I think we are months away from any final ruling in Merryday's court.  All that effectively matters now is (1) whether the CDC asks SCOTUS to impose a stay (seems unlikely) or (2) whether the 11th Circuit reverses Merryday's PI.  

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1 hour ago, cdixon22 said:

That’s crazy. Think of the amount of money the cruise industry brings to South Florida and Miami.  Why bite the hand that feeds you. 

Those critics  greatly dislike the image of a conspicuous consumption the leisure industry may represent.  They don't like it that it may represents as a  symbol/example of capitalism.  By the way, they have the same attitude towards "us" as consumers of that leisure industry.   (Philosophical disagreement).

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Don't worry about the CSO not being enforceable; the CDC still can flex its mask muscle.

 

CDC says mask rules will apply to Florida cruise ships not following sail order | Reuters

"The U.S. Centers for Disease Control and Prevention (CDC) said late Friday that it will enforce its transit mask requirements on cruise ships in Florida that opt not to abide by its conditional sail order following a court ruling."

"The CDC said it will not waive mask requirements in indoor spaces on cruise ships for those lines that are not voluntarily complying with its conditional sail order."

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