Today, Judge Steven Merryday denied the Center for Disease Control and Prevention’s (CDC) motion to stay of the June 18th ruling that set the Conditional Sailing Order (CSO) to become mere guidance in Florida. In the 3 page denial (PDF), Judge Merryday ruled, a stay would serve to extend the unwarranted, unprecedented, and injurious exercise of governmental power by one person, the Director of CDC.
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
STATE OF FLORIDA, Plaintiff,
v. CASE NO. 8:21-cv-839-T-23AAS XAVIER BECERRA, et al.,
CDC moves (Doc. 96) for a stay pending appeal from a preliminary injunction (Doc. 91). CDC designates the motion “time-sensitive.” Assuming either Florida or CDC will move immediately in the Eleventh Circuit for a review of this order and to offer the most time — before the preliminary injunction becomes effective on July 18, 2021 — for the parties to brief and for the Eleventh Circuit to resolve the forthcoming motion, this order promptly addresses CDC’s present motion.
With some marginal elaboration and a new affidavit not otherwise in the record, CDC in the present motion rehearses the arguments advanced unsuccessfully in opposition to Florida’s motion for a preliminary injunction. CDC’s arguments remain unpersuasive. CDC remains dismissive of the requirements of the Administrative Procedure Act, remains dismissive of the manifest disjunction between the statute granting CDC authority and the authority CDC purports to exercise over the cruise industry, remains dismissive of state and local health regulation and dismissive of the cruise industry’s self-regulation (that resulted in a voluntary cessation of cruise ship operation when COVID-19 appeared in early 2020), remains dismissive of successful cruise ship operation elsewhere in the world, and surprisingly remains studiedly dismissive of the opportunity, afforded in the preliminary injunction, for CDC to propose an alternative injunction that preserves any part of CDC’s cruise ship regulations within CDC’s statutory grant of authority and justified by reliable data (that is, data that CDC will disclose, unlike the undisclosed CDC data that speculates about the effect of COVID-19 aboard a cruise ship and on which CDC relies to impose the disputed regulatory regime).
In this instance, CDC’s argument fails for the reasons elaborated in the preliminary injunction to show a likelihood of success on appeal, and CDC fails to demonstrate that denial of the stay will injure materially CDC or the United States, any third party, or the public. Although CDC invariably garnishes the argument with dire prospects of “transmission” of COVID-19 aboard a cruise vessel, these dark allusions dismiss state and local health authorities, the industry’s self-regulation, and the thorough and costly preparations and accommodations by all concerned to avoid “transmission” and to confine and control the “transmission,” if one occurs. In other words, CDC can show no factor that outweighs the need to conclude an unwarranted and unprecedented exercise of governmental power. More to the point, this action is not about what health precautions against COVID-19 are necessary or helpful aboard a cruise ship; this action is about the use and misuse of governmental power.
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.
ORDERED in Tampa, Florida, on July 7, 2021.
Judge Steven D Merryday
United States District Judge
The use and misuse of power. Denied!
The Judge sure laid the smackdown on the CDC.
I know you’re eager to sail, but maybe consider that the CDC is eager to save lives, so maybe don’t be dicks about it.
I hear Rudy has been hired to appeal to SCOTUS… 😉
Thank you Judge Merryday.
It’s unfortunate what the CDC has become during this time; a bunch of career bureaucrats hungry for power. It serves none of us well. For the CDC to not even try to amend the CSO to make it less onerous or provide more specific compelling data to back it up is ridiculous. They simply fell back on their original argument – ‘we’re right, you’re wrong and you better listen to us or we’re all dead.’ Good riddance to the CSO (at least in Florida).
Can’t fight Darwinism
I know you’re scared to death of a virus that has a mortality rate of 99.5% and has a low cost, widely available treatment for, so maybe don’t be pussies about it.
Paul – I’m guessing you disagree. The way you ‘fight Darwinism’ is to provide specific compelling data that proves that the cruise industry is meaningfully different than planes, trains, cars or even 20k people last night in an indoor stadium screaming for 4 hours in Tampa Bay, FL. The CDC provided nothing in their response. They claim to ‘follow the science’ and ‘follow the data’ but don’t provide any of it to prove it. Show me the statistics and data and they can have their CSO back. The problem is they can’t.
The CDC is not the nation’s collective parent. If you don’t want to go on a cruise, then don’t do on one. The CDC was never given the authority to shut down an entire industry when both the industry and its customers are willing participants. Not to mention there’s a vaccine available.
I find it interesting that not one cruise line joined Florida’s lawsuit against the CDC. They don’t have a problem with the conditional order and they would much prefer that 95% of passengers are vaccinated. Much easier for them; don’t have to worry about segregating passengers, mask wearing. Now, apparently some cruise lines are requiring (before it was optional) travel insurance that covers such things as the costs of evacuation etc. Florida can’t prevent cruise lines from taking these steps. (For the record for all of our cruises we have always purchased trip insurance.).
I think, as a matter of law, the district judge in Florida got it wrong and should be reversed. Florida is not injured by the no-sail order; the cruise lines are supposedly the injured parties. Florida has no standing. Loss of tax revenues is typically not sufficient to confer standing. CDC has jurisdiction over ships that sail in international waters and stop in international ports. Florida does not. I don’t know how the Eleventh Circuit will handle this; they could well affirm.
Also, I read some of the CDC’s filings and proof. They state compellingly that travel on a packed cruise ship is not the same as flying on a plane (which has much better ventilation than a cruise ship) or restaurants, hotels, etc. Judge Merryman, on the other hand, in his opinion last month said the no-sail order is the equivalent of outlawing all sex due to fear of AIDS. I don’t think that it’s hyperbole to say that this is just a silly comparison. The CDC’s lawyers can pick this apart. In this highly politicized environment, who’s to say what the appellate courts will do.
I made a reservation for next July on the Fantasy (9-day Southern Caribbean cruise) because my wife and I figured that cruising this year, regardless of whether you agree or disagree with the various onerous regulations by the CDC or the machinations of politicians like DiSantis, would be a cluster***k. It’s turning out that’s the case. I have no compelling need to cruise in 2021, and we didn’t want the aggravation of wringing our hands worrying about whether the ship would sail or not. We haven’t cruised since 2017. In 2018 we took a great trip to Curacao and went to Florida in 2019. We survived without cruising. And, even though we are both fully vaccinated, we won’t go on a cruise that has restrictions like segregating passengers, eliminating the buffet lines, etc. That ruins the cruise experience for all passengers, not just the un-vaccinated. We have the date circled on our calendar as the last date we can cancel and get our deposit back. We’ll wait and see how everything plays out. We love DCL and hope we’ll be going.
All that being said, I hope everyone here who is booked to cruise in 2021 gets to go, stays healthy and has a wonderful time.
PLI – The cruise lines did not join the CDC either. I can’t believe they like the CSO. Quoting the Norwegian CEO on the CDC and their restrictions and regulations – ‘We’re perplexed. We’re flabbergasted. We’re outraged.’. No one agrees with the CDC on this. Hopefully, the 11th circuit also doesn’t.
John, I think you need to look at all of Mr. Del Rio’s comments in their proper context. On May 6, when he made the comments you cite, he also said that Norwegian was going to require 100% vaccination of all passengers and crew. He also blasted the CSO for requiring “only” 98% of crew and 95% of passengers to be vaccinated.
In other words, what he was saying was that if we’re 100% vaccinated, we don’t need to have all of these dumb restrictions. I have to agree with him on that point. He also said that the Florida anti-passport law (which was only an executive order at the time, not a law) was problematical. By the way, Mr. Del Rio was the one making the most noise about finding alternative embarkation sites to Florida ports (which you, and others here, have ably pointed out, was an empty threat).
I think that the lawyered-up cruise lines believe that it was Florida, not the CDC, that exceeded its authority, and that now, in July, having the CSO in place and expiring on its own terms is not so bad. They don’t want to get in the middle of a federal/state conflict…they’ll do whatever the courts ultimately allow. That is what’s best for their bottom line and their legal liability. The affidavit submitted by the CDC discussed how many sailings have been approved and for which approval is pending. In other words, in July 2021, the cruise lines are not really being injured by the CSO. When cruises are actually starting up again, where’s the injury? If they were being so devastated by the lawsuit a few months ago they would have been in a stronger legal position.
As I said before, if I were an appellate judge, I’d probably vote to vacate the injunction. While I would like to think that the federal appellate courts are above politics, I can’t predict what will happen.
Hope you’re well in SC! Never been there, but would love to visit Charleston!
PLI – You really believe the cruise lines weren’t injured by the CSO and still aren’t being injured? That’s absurd. Look at DCL. Failed a required test cruise and now flapping in the wind trying to schedule another one. You don’t think DCL would be sailing right now if not for the CSO? Ridiculous.
Your comment was a bit “dick”. The CDC has over stepped their boundaries for over a year, and have gone against the constitution of the United States. As adults, we can make our own decisions as to what is best for our families.
Cruises are different than most other gatherings because you’re stuck on the same ship in close quarters with the same group of people for days on end. That’s why nobody cares about norvirus in restaurants, but, they certainly cared on every cruise I every took.
The whole point of the CDC order is to prevent another Diamond Princess. ONE passenger with COVID-19 managed to infect around 700 people, of which 14 died. And that was with the original version of COVID, not the current Delta variant that’s more contagious and, some reports indicate, is more dangerous.
Now, you can argue whether the government has the right to stop you from doing something dangerous. And, personally, if people want to do something dangerous to themselves, then sure, go ahead. It’s a free country. You don’t want to wear safety glasses while using machine tools, you want to get fourths from the ice cream buffet – go nuts.
But, if the consequence of doing something dangerous is that people spread the disease back into the community, and/or take up medical resources that could have been used by somebody else, that’s when it DOES become the government’s business, because that’s when people’s dangerous behavior starts affecting others — including me and my family.
Or, in other words, People want to do something dangerous? Go ahead. People want to do something dangerous that could send myself or people I care about to the hospital? Maybe take a step back and think about what they would do if the shoe were on the other foot.
Jerry – you’re using the same faulty logic the CDC is trying to use and not doing it very well. No data, no statistics whatsoever that transmission, etc is any different on a cruise than it would be at a hotel/resort, concert. etc. Provide the data and get your CSO back. If not, then just stop. Assumptions are not valid anymore for denying an entire industry.
John – If DCL really believed they were being injured they could have joined in Florida’s lawsuit. They didn’t. They didn’t believe it was that onerous. They probably didn’t think they would fail the test cruise. Given that DCL is the gold standard for family cruising, I don’t blame them for thinking that way.
They were ok with it. They worked with the CDC. Again, where’s the injury? What the cruise lines wanted was for Florida to stay out of it and permit them to require proof of vaccination. If Florida had done so they probably would be sailing right now. If the CEO of Norwegian is to be believed, what they wanted was for the CDC to require 100% vaccination and fewer restrictions. They wanted 100% vaccination because surveys indicated that most customers wanted 100% vaccination. In short, having 100% vaccination is better for their bottom line. I agree that the CDC probably made things more complicated than it had to be. By trying to please everybody they ended up pleasing nobody. But, is what they did unlawful? My answer is no.
All of the cruise lines had the opportunity to sue the CDC or join in Florida’s lawsuit. They didn’t. The cruise lines were shut down through the CDC and through their own voluntary extensions of the no-sail orders. For over a year. Did they file any lawsuits? Perhaps they should have sued Florida instead. My guess is that with things so close to resuming, what’s the point? Plus, they’re hoping the additional restrictions they’re adding will encourage more customers to be vaccinated. What they want is to get through this period with as few glitches as possible so they can resume this summer. Which I think will happen unless things get very bad very quickly with the Delta variant and increased infections.
PLI – I’m up for debating whether FL has standing or if the CDC rules are reasonable, etc. That makes sense and I could even be persuaded with the right facts. But there is no debate at all about the CSO injuring the cruise industry. You’re simply wrong. You’re trying to tell me hundreds of non-revenue test cruises does not injure the cruise lines? That some cruise lines are keeping ships in port until November waiting for the CSO to expire? Sorry, I don’t buy it. Every ship would be sailing right now if no CSO was in place. A press release from CLIA: ‘Furthermore, cruise line CEOs shared their views on why the CSO – which was issued nearly six months ago – lags behind international efforts, does not reflect an understanding of how the industry operates, is predicated on scenarios that are increasingly unlikely and has not kept pace with positive medical advancements. In recent weeks, the cruise industry has criticized the CSO as being overly complicated, outdated, and unnecessary.’ This surely doesn’t sound like an industry that wants it around. You’re wrong. Period.
John – Sure they don’t like it. I’ll concede that. And I’m also willing to concede that the injuries the industry have suffered are continuing. But they’ve suffered injuries for well over a year before the CSO came out. No lawsuits. CLIA voluntarily agreed to extend the shutdowns even before CDC extended them. But then allege it in court. Why didn’t they join the Florida lawsuit? It would then, as you say, be easier to establish standing. That’s because cruises are being booked, deposits are being collected by the cruise lines. And they will be sailing. Again, I’m reasonably certain that if Florida hadn’t imposed a ban on vaccine passports, they’d be sailing right now. I’m not sure why the cruise lines haven’t challenged that in court. Again, they don’t want to be tied down in court in what they see as a political battle between Florida and the feds. By cooperating they figure they’ll get what they want, and faster.
I think you and Jerry are having an interesting discussion. You’re correct to insist on data. I don’t have it at my fingertips, but the affidavit appended to the Motion for Stay (from Captain Aimee Treffiletti) cites to numerous studies that say that cruising is inherently more susceptible to spreading COVID than other activities or places, such as hotels, restaurants, etc. Along the line of what Jerry is saying. The affidavit was appended to Scott’s original post.
PLI – You assume though that the only reason they didn’t join the lawsuit was that they were not injured and the CSO was fine with them. They surely lost money prior to the CSO, but they made those decisions voluntarily. The CSO is causing forced expenditures. They have no say if they want to sail revenue cruises. That’s definitely an injury and one that is caused only by the requirements of the CSO.
There also could be a myriad of reasons why they didn’t want to join the lawsuit. Maybe their in-house counsel decided they couldn’t win? Maybe the board thought dialog with the CDC was a better option? Maybe the industry received bad information about a soon to be expiring CSO? The list goes on an on. We’re likely to never know the true reasons but your assumption is only one of many possibilities.
I’ll look for that data. That will be interesting. Wonder if it is updated? Or if it is stale? Anything from earlier in the year when vaccines were only just beginning is probably not worth the paper it’s printed on now.
I found this report from the CDC from last fall, when the no sail order was extended in September. I will grant you that it could be outdated, but I think the conclusions are valid. Of course the big game changer are vaccines. I’m not ready to concede that it’s not worth the paper it’s written on
You know what I find to be a relatively unimportant, but nevertheless, aggravating consequence of COVID? Now, everything I want to read is behind a goddamn paywall! Or at least it seems that way….
Everybody has an opinion. Let us just wait to see the outcome, then make our decisions if we want to continue to sail or not. PLI sounds more logical and I am more on board with him. If we can’t change things, maybe we should let it go. Stressing out is not good in this environment.
John – here are some facts – all agreed on – by even by Fox Entertainment
1- 99.5% of all deaths last month due to covid were people who were unvaccinated – you say your death should not bother me – hoispitals in some areas are once again not available to other patients, surgeries and emergencies – there are a finite number of resources, medical staff and hospital rooms – the vaccine is free – hospital bills have gone into the miillions
2 – those who are unvaccinated are much more likely to get and pass on the delta variant – even to those who are vacinated – including children – the statement if I am vaccinated, it should not bother me that you are not, is not valid – the unvaccinated affect the vaccinated – I won’t die but I and those I love can get sick – society will not totally open up as I would hope with a large percentage unvaccinated
3 – this situation keeps the pandamic going and perhaps increasing – more unvaccinated people give the delta variant more places to land and take hold
4 – areas of the US with low vaccination rates are seeing large hospital increases and deaths – explain this situation and why more should not be vaccinated
5 – vaccines have been around long enough that there is data to use of effectiveness and complications – vaccines are very effective and complications are very rare and few – especially considering death, long term effects, and complicating effects of covid
6 – Julian Zelizer,a professor at Princeton has a great article on rights and freedom and working for the common good of all – we already have many laws that are necessary because the rights people refuse to be responsible and work for a common good
7 – PLI is so correct companies are trying to move within the court system as smoothly as possible and trying to restart in such a way that guests and customers will not sue them
8 – PLI had a good point that the unvaccinated are really gaining the benefits of those who have gotten vaccinated – things have opened up due to the vaccinated numbers increasing
9 – many who have had covid have begged the unvaccinated to get vaccinated – even those who have experience and take the time to warn others are ignored or dismissed
10 – you and others can shout my rights – but until you and others take responsibility and working for the common good of all – covid and the resulting consequences in our world reopening will continue
Disney Family – all good points. I get it. You’re a righteous and pious individual always looking out for the welfare of others. Good for you. Unfortunately, you like to tell others what to do as well. Not so good. But my discussion here was strictly with the CSO and whether it’s valid, onerous and injuring cruise lines. All of this other stuff you just posted are completely different topics discussed ad nauseum elsewhere. Not interested in rehashing all of that with you again.
PLI – Thanks for posting that. I’ll dive into that and take a look. I’ll be sure to drink a lot of caffeine and try and read it during the afternoon. It doesn’t appear to be a page turner. What would be interesting to find would be some type of cruise industry rebuttal. My guess, based on what they’ve been saying recently, is that most of that document is likely invalid now based on vaccines, new testing, new protocols, etc. Which of course is their main argument for expiring the CSO now, instead of Oct 31.
Walt – I agree that we all have opinions. That’s why it’s interesting to discuss in a friendly forum like this the merits of those opinions. I’m more interested in discussing it than just waiting to see the outcome. What fun is that? Some folks may stress about it, but everyone here seems pretty engaged and values the discussion. I know that hearing all points is a really good thing. I learn every day from folks on this board. To me, at least, it’s the opposite of stressful. It’s a way to relieve the stress of this whole mess to talk about it.
You can interpret the comment as you will. I would observe though that a data scientist can present data in many ways.
John-Agreed. I’m also glad we have this forum to respectfully discuss these important issues. Two things we all have in common…we’re all DCL fans and we all want to sail again as quickly and safely as possible.
A big reason why the judge has twice laid into the CDC pretty good, both in his initial ruling June 18, and then in his denying the motion to stay that ruling, was the lack of transparency from the CDC. He asked them to provide data to support their claims that cruise ships needed to be treated differently than airplanes, hotels, etc and the CDC refused to provide any. They have just basically said “we are not going to give it to you, but just trust us” (the two words you never want to hear from any gov agency) that they have the data.
Yep, exactly right. Judge Merryday gave the CDC every opportunity to modify or provide enough data and evidence to back up its original conclusions. They decided not to. My guess is they did not want to set any type of precedent that would endanger their future regulatory authority. The idea that they might not have absolute power to bring any industry to its knees was something they couldn’t handle. Thus the hail mary to the 11th circuit. It’s in the best interest of everyone if the 11th circuit agrees with Judge Merryday. It will force an agency like the CDC to prove beyond a shadow of a doubt with actual data and statistics that what it is doing is reasonable.
Before we get into ‘proof” the Court of Appeals still has to resolve two legal questions. First, standing, as I said before. Whatever injuries the cruise industry may have suffered is irrelevant. They’re not a party. Second, is question of federal authority. Historically, the federal government has always had the authority under the Commerce Clause and the Supremacy Clause to the Constitution to regulate interstate commerce and international commerce. That’s been the law for decades. Individual states, while they have considerable authority in most areas, cannot go off half cocked and do whatever they want regarding things like the safety of out of state and international passengers. Now, if a state wants to go beyond what the federal government requires is something that frequently gets debated, particularly with things like emissions standards. That’s a different question.
I think the standing issue has been overlooked. By way of full disclosure, I’m an attorney who specializes in appellate practice. I was a law clerk to a federal appellate judge in the Third Circuit Court of Appeals (a Reagan appointee). I don’t claim specialized knowledge of the particular regulatory questions on appeal, and have no knowledge of the current makeup of the 11th Cir. I can say from experience that federal judges need to be convinced that the party making the claim has suffered a cognizable injury. Every appellate judge I’ve seen in action, whether appointed by a Republican or Democratic president, takes the question of standing very seriously, as they will not get into disputes that are are not live “cases or controversies.” Now, DiSantis, while I don’t like him, is a very bright guy. He’s a Harvard trained lawyer. He’s also a more tactile (and more ruthless) politician than people have given him credit for. He’s like a smarter version of Trump (much smarter). He knows who his voters are and will bend over backwards to make them happy. I have to believe that either he or the Florida AG put the arm on the cruise lines to join the lawsuit. At least file an amicus brief as friend of the Court. Maybe they will in the 11th Cir. But, while they have an interest in the outcome, that doesn’t confer standing. Also, the Court of Appeals can start from scratch on the standing issue; they don’t have to give any deference to Judge Merryman on the standing issue. It goes to the jurisdiction of the federal courts.
I could teach a law school class (or several) civil procedure, admiralty, federal jurisdiction, administrative law, constitutional law. Maybe a law review article…
Meant to add at the wnd of my lengthy post ‘I could teach a law school class on this one case…”
Thanks PLI. That’s a ton of great information. I do find it interesting then that FL was granted standing in the first place. I would find it odd that the 11th circuit would not find the same, but you certainly know more if that’s much of a possibility. When you talk about federal govt authority…is the CDC granted authority under the Commerce Clause and Supremacy Clause? As just an onlooker without your knowledge, it would seem crazy that just any federal agency without powers provided by congress could simply regulate interstate and international travel. I don’t remember the CDC ever exhibiting such power in the past, maybe a few travel alerts, etc but nothing anywhere near this level. All very interesting questions for sure.
John – You ask excellent and important questions. To clarify, my discussion of the Commerce and Supremacy Clauses are stating the broad principles of federal authority over interstate and international commerce. The CDC, like all federal agencies, is a creation of Congress, and does have broad powers. I think in the past they may have shut down an individual cruise or two, but I’m not sure. Certainly, as you say, nothing like this. But these are also unprecedented times.
In terms of standing, it’s not unusual for appellate courts to find a lack of standing even where the district court has found standing and reached the merits of the case. The recent SCOTUS opinion upholding the individual mandate in the Affordable Care Act is a good example. The District Court struck down the individual mandate, and that ruling was affirmed by the 5th Circuit. SCOTUS reversed and found that none of the Plaintiffs had standing, and punted on the constitutionality issues.
I think the Judge Merryman didn’t want to grant the injunction; he wanted the parties to settle. He probably didn’t think that CDC was being reasonable. I don’t know if they could have settled. I think the CDC believes this opinion sets a bad precedent going forward, hence the appeal.
Crew coronavirus cases sideline Cunard’s Queen Elizabeth sailing
So the CDC, courts, rulings, who joins what court actions, court or ruling dating, it will not matter if the virus outbreaks again.
Walt, Interesting. So the CDC, court cases, who is involved in the court cases, dates set by the courts, will not matter if there are positive virus cases.
Walt – this is going to happen. Just think if they tested every flight attendant and announced to the public which flights were cancelled? You would see it all the time. But they won’t and can’t because guess what? Nothing like a CSO exists for airplanes, trains, etc. This is exactly the point I’ve been trying to make. The CSO is a joke if something like it is not in effect for other industries.
Was just reading the comments on this today, and in light of the discussion, I found interesting that today Norwegian Cruise Line filed an amicus brief in the case in favor of the CDC’s request for a stay, and in opposition to the State of Florida. “It is only Florida’s purported prohibition, not CDC’s existing framework, that NCLH finds problematic.” Norwegian takes issue with the State of Florida “currently seeking to prohibit NCLH from requiring that its passengers supply documentation confirming their vaccination status.” “Indeed, the sole potential impediment to NCLH resuming sailing as planned is now posed by the State of Florida, not by CDC.”
McCoy-Norwegian has also filed a lawsuit against Florida to enjoin enforcement the Florida anti vaccine passport statute.