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


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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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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.  

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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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