Court rules for Florida in cruise case, grants injunction stopping CDC order...

[colliece]

1 minute ago, Turtles06 said:

 

You are correct.  The court said it expressly in the part you have quoted (and that I quoted in my comment 127 above) -- the preliminary injunction (stayed until July 18) applies ONLY to "a cruise ship arriving in, within, or departing from a port in Florida."    

I saw you posted the same excerpt I did.  My reading says that the Alaska law is unaffected by this decision, I think the Judge  addressed that in his ruling, that Texas and Alaska are yet shown to have Standing, but based on the response I would imagine that Alaska has been even more financial harm due to the order than Florida, since they are highly dependent on the cruise tourism dollars.

[Turtles06]

2 hours ago, latserrof said:

Yes, thanks. I am a lawyer, and I was surprised by the judge's gratuitous attacks on the CDC, which, along with other parts of his opinion,  makes me think he would not accept any modified order the CDC might respond with. 

 

I found it quite strange that while the judge, throughout his ruling, touted the importance of vaccines  in combatting the pandemic, and accused the CDC of discounting this 2021 development, he ignored the fact that recently-adopted Florida law not only prohibits local businesses from requiring customers to prove they've been vaccinated, but also that DeSantis is taking the position that this law applies to cruise lines.  Seemed a little off-balanced to me by the judge.

[Ken the cruiser]

OK, we have a B2B2B booked on the Edge in August. If X is commited to offering 95% vaccinated cruises, which by all accounts it seems they are, what's the real world impact of this injunction to someone cruising out of Ft Lauderdale on a Celebrity cruise, especially if we're fully vaccinated and are driving to the port?

[Turtles06]

8 minutes ago, colliece said:

My reading says that the Alaska law is unaffected by this decision, I think the Judge  addressed that in his ruling, that Texas and Alaska are yet shown to have Standing, but based on the response I would imagine that Alaska has been even more financial harm due to the order than Florida, since they are highly dependent on the cruise tourism dollars.

 

Texas and Alaska moved to intervene in the Florida case (that is, they sought to become additional plaintiffs alongside Florida), but as the court says at the top of page 11 of its ruling, those motions are "unresolved."    So yes, there's been no finding by the court that either of those states has standing, but I agree with you, given how the court ruled as to Florida's standing, it would likely find that Alaska has standing as well.

 

[harkinmr]

34 minutes ago, colliece said:

Well I am not a lawyer, but here is the wording used by the judge, "Because of (1) Florida’s probability of success on the merits, (2) the imminent threat of irreparable injury to Florida, (3) the comparative injury depending on whether an injunction issues, and (4) the imminent and material threat to the public interest, Florida’s motion for preliminary injunction is GRANTED and CDC is PRELIMINARILY ENJOINED from enforcing against a cruise ship arriving in, within, or departing from a port in Florida the conditional sailing order and the later measures (technical guidelines, manuals, and the like)."

 

He states pretty clearly this ruling only applies to sailing to or from Florida.  But a legal expert may know different, but the ruling does not apply to the rest of the country.

I am a lawyer, and I do not read it that way.  The judge makes very clear here that he believes that the CDC has exceeded its constitutional authority.  That authority does not change from one state to another and his opinion is based entirely on the US Constitution and federal law, which governs the entire US.  If it is unconstitutional against one state, it is unconstitutional against all. 

 

See the language here:

 

"This order finds that Florida is highly likely to prevail on the merits of the claim that CDC’s conditional sailing order and the implementing orders exceed the authority delegated to CDC under Section 264(a). Alternatively, this order (1) finds that, if Section 264(a) includes the comprehensive authority claimed by CDC to promulgate and enforce regulations, Section 264(a) likely constitutes an unconstitutional delegation of legislative power to CDC because the delegation fails to convey any “intelligible principle” to guide CDC’s exercise of authority and (2) finds that the Supreme Court seems likely to impose soon a more demanding standard, which Section 264(a), as interpreted by CDC, is even more likely to fail. Case 8:21-cv-00839-SDM-AAS Document 91 Filed 06/18/21 Page 122 of 124 PageID 3523 - 123 - Additionally, this order determines that Florida is likely to prevail on at least one, but perhaps not all, of the several other claims based on the APA."

 

If it is indeed the judge's intention that his order applies ONLY as to Florida ports, then he would have more narrowly drawn his ruling.  A more narrow reading, as you suggest, would put other states at a distinct disadvantage and likely draw further challenges to his ruling, as well as possible challenges by the cruise lines.  I do not see him trying to set up two separate standards of federal law application against the cruise lines, nor the practicality in doing so.  Florida is a separate state within this nation, not a separate nation in and of itself.

 

EDIT:  Further, the judge ruled that the CSO is no longer binding as regulation as of July 18 (not just against Florida) unless replaced by an agreed upon and court approved amended version, which would then be fully enforceable as federal law.

 

"However, the preliminary injunction is STAYED until 12:01 a.m. EDT on JULY 18, 2021, at which time the conditional sailing order and the measures promulgated under the conditional sailing order will persist as only a non-binding “consideration,” “recommendation” or “guideline,” the same tools used by CDC when addressing the practices in other similarly situated industries, such as airlines, railroads, hotels, casinos, sports venues, buses, subways, and others. (Docs. 45-4; 45-5;45-6; 46-4) However, to further safeguard the public’s health while this action pends, CDC may propose not later than JULY 2, 2021, a narrower injunction both permitting cruise ships to sail timely and remaining within CDC’s authority as interpreted in this order."

Edited June 19, 2021 by harkinmr

[colliece]

7 minutes ago, Ken the cruiser said:

OK, we have a B2B2B booked on the Edge in August. If X is commited to offering 95% vaccinated cruises, which by all accounts it seems they are, what's the real world impact of this injunction to someone cruising out of Ft Lauderdale on a Celebrity cruise, especially if we're fully vaccinated and are driving to the port?

I don't really think it will have any effect in the short term.  The cruise lines were already doing more than most of the recommendations, I would imagine it may allow them to bring more ships online sooner, I would assume the big holdup is getting the ships crewed up, and then getting everyone vaccinated.  

[Turtles06]

10 minutes ago, harkinmr said:

I am a lawyer, and I do not read it that way.  The judge makes very clear here that he believes that the CDC has exceeded its constitutional authority. 

 

Actually, in its opinion (the part you quoted), the court says that the CDC exceeded its statutory authority, but if it is found that the statute actually gave the CDC the authority it claims to have, then the statute itself would (in the court's judgment) "likely be" unconstitutional under the non-delegation doctrine.    In the court's actual ORDER granting the preliminary injunction, which begins on page 123 of the ruling, the court expressly says that the preliminary injunction applies to ONLY to "a cruise ship arriving in, within, or departing from a port in Florida."   If you still disagree about the geographic scope of the preliminary injunction, it would be great if you'd explain how that very specific language means something other than what it says.     

 

[Ken the cruiser]

I agree with you @colliece. 😎

Edited June 19, 2021 by Ken the cruiser

[Fouremco]

41 minutes ago, harkinmr said:

I am a lawyer, and I do not read it that way.  The judge makes very clear here that he believes that the CDC has exceeded its constitutional authority.  That authority does not change from one state to another and his opinion is based entirely on the US Constitution and federal law, which governs the entire US.  If it is unconstitutional against one state, it is unconstitutional against all. 

 

See the language here:

 

"This order finds that Florida is highly likely to prevail on the merits of the claim that CDC’s conditional sailing order and the implementing orders exceed the authority delegated to CDC under Section 264(a). Alternatively, this order (1) finds that, if Section 264(a) includes the comprehensive authority claimed by CDC to promulgate and enforce regulations, Section 264(a) likely constitutes an unconstitutional delegation of legislative power to CDC because the delegation fails to convey any “intelligible principle” to guide CDC’s exercise of authority and (2) finds that the Supreme Court seems likely to impose soon a more demanding standard, which Section 264(a), as interpreted by CDC, is even more likely to fail. Case 8:21-cv-00839-SDM-AAS Document 91 Filed 06/18/21 Page 122 of 124 PageID 3523 - 123 - Additionally, this order determines that Florida is likely to prevail on at least one, but perhaps not all, of the several other claims based on the APA."

 

If it is indeed the judge's intention that his order applies ONLY as to Florida ports, then he would have more narrowly drawn his ruling.  A more narrow reading, as you suggest, would put other states at a distinct disadvantage and likely draw further challenges to his ruling, as well as possible challenges by the cruise lines.  I do not see him trying to set up two separate standards of federal law application against the cruise lines, nor the practicality in doing so.  Florida is a separate state within this nation, not a separate nation in and of itself.

I'm neither a lawyer nor a citizen of the US, so I don't profess to know all of the intricacies of your federal law, but your statement that if the CSO is "unconstitutional against one state, it is unconstitutional against all" is certainly logical. The Canadian constitution has a "notwithstanding" clause that enables the federal government or provincial legislatures to temporarily override certain parts of the constitution, but I'm not familiar with a similar provision in the US that would enable the judge to find that the CSO is unconstitutional in Florida but constitutional elsewhere.

Edited June 19, 2021 by Fouremco

[harkinmr]

1 minute ago, Turtles06 said:

 

Actually, in its opinion (the part you quoted), the court says that the CDC exceeded its statutory authority, but if it is found that the statute actually gave the CDC the authority it claims to have, then the statute itself would (in the court's judgment) "likely be" unconstitutional under the non-delegation doctrine.    In the court's actual ORDER granting the preliminary injunction, which begins on page 123 of the ruling, the court expressly says that the preliminary injunction applies to ONLY to "a cruise ship arriving in, within, or departing from a port in Florida."   If you still disagree about the geographic scope of the preliminary injunction, it would be great if you'd explain how that very specific language means something other than what it says.     

 

Because that is the language for the preliminary injunction.  This is not a final determination on the merits of the case, nor the constitutionality of the underlying statute.  In addition, the preliminary injunction has been stayed until July 18 when either a new order replaces the CSO or there is an appeal by the CDC.  A trial on the merits will be forthcoming unless the parties reach an agreement in mediation. Subject to the results of the mediation, or an appeal, as of July 18 the CSO becomes non-binding, not just against Florida but against each and every state.  How do you propose that the CDC would exercise it's purportedly failed statutory (and now non-binding) authority against the same cruise line sailing out of any number of other ports in the US?  

[ebeluga]

Every judge or person interprets the exact terms or language differently.  I say take it to Appeals and let another set of heads dice it or splice it.

[harkinmr]

23 minutes ago, Fouremco said:

I'm neither a lawyer nor a citizen of the US, so I don't profess to know all of the intricacies of your federal law, but your statement that if the CSO is "unconstitutional against one state, it is unconstitutional against all" is certainly logical. The Canadian constitution has a "notwithstanding" clause that enables the federal government or provincial legislatures to temporarily override certain parts of the constitution, but I'm not familiar with a similar provision in the US that enable the judge to find that the CSO is unconstitutional in Florida but constitutional elsewhere.

As well, I am not at all familiar with Canadian constitutional law. 

 

This case was not brought on grounds that it violated protections provided under the Florida Constitution.  It was brought as a challenge to federal law and a claim that the agency exceeded its statutory authority under the US Constitution and its legal mandate.  So the question becomes did the CDC exceed its authority under federal law?  If so, the CSO must be null and void.  I'm not sure I entirely understand the judge's logic because if he believes that the CSO is in fact illegal and if the CDC does not have the authority they claim, why leave the order in place for any period of time?  If it is illegal, then declare it unenforceable now.  Not later depending upon whatever else the CDC might come up with.

Edited June 19, 2021 by harkinmr

[cscurlock]

Just now, ebeluga said:

Every judge or person interprets the exact terms or language differently.  I say take it to Appeals and let another set of heads dice it or splice it.

This is the basic inevitability.  There is no reason to mediate based on the judges stance.  Because anything mediated on would be non-binding since the judge basically said the CDC can only make recommendations.  The judge just wants a settlement so it won't be appealed.  The CDC will just wait and go to appeal and ask the appeals court to hold the CSO until the appeals court rules. 

[cscurlock]

Just now, harkinmr said:

As well, I am not at all familiar with Canadian constitutional law. 

 

This case was not brought on grounds that it violated protections provided under the Florida Constitution.  It was brought as a challenge to federal law and a claim that the agency exceeded its statutory authority under the US Constitution and its legal mandate.  So the question becomes did the CDC exceed its authority under federal law.  If so, the CSO may be null and void.  I'm not sure I entirely understand the judge's logic because if he believes that the CSO is in fact illegal and if the CDC does not have the authority they claim, why leave the order in place for any period of time?  If it is illegal, then declare it unenforceable now.  Not later depending upon whatever else the CDC might come up with.

You are correct the CSO invalidated in federal court means its invalidated in the whole US.  I also believe the ATRA is also invalidated since the ships can't get a CSO certificate now. 

[bajathree]

There is also a chance that come this 4th July weekend the Biden administration makes some big announcement saying we have turned the page on Covid.

Edited June 19, 2021 by bajathree

[Host Jazzbeau]

The pressure is now on the CDC to come back to the judge with an acceptable watered-down CSO or to give Florida what they want in the second mediation – because allowing this case to proceed raises a HUGE risk to the CDC that its powers will be significantly curtailed forevermore.  They will not want to risk that precedent.

 

As to @harkinmr's question about why the judge left the order in place or put in the language about Florida ports – maybe he wants to preserve the Alaska cruise season.  As long as the CSO remains in force for Alaska cruises, that requirement in the ATRA is met.  By the time the full trial is over and a decision rendered there, the Alaska cruise season will be over and ATRA will be moot.

[Cruising89143]

13 minutes ago, cscurlock said:

This is the basic inevitability.  There is no reason to mediate based on the judges stance.  Because anything mediated on would be non-binding since the judge basically said the CDC can only make recommendations.  The judge just wants a settlement so it won't be appealed.  The CDC will just wait and go to appeal and ask the appeals court to hold the CSO until the appeals court rules. 

I think the appeals court is the way to go. 

[BermudaBound2014]

3 hours ago, graphicguy said:

The other question I have, at least among the most vocal here, I haven't heard of one person who is planning to cruise unvaccinated.  

Many unvaccinated people on various social media sites have confirmed they are booked on several different ships departing next month. I haven’t read of any unvaccinated on next weeks sailing, but positively in July (and ironically a fairly large group on your Apex sailing). Just do a search in FB, they aren’t hiding it. 

[DallasGuy75219]

2 hours ago, K12Guy said:

The judge's decision about the injunction really has nothing to with on-board protocol since the ships are flagged and regulated by other countries and are just docked at a U.S. port.

I agree, but that didn't stop from some from making the leap that the cruise lines were going to do a 180 on vaccine requirements and onboard COVID protocols.

 

Some people can't see past their own anti-vax opinions and COVID denialism, and their 'freedom' to do what they want to do how they want to do it, to understand that the cruise lines have to get this restart right.  Cruises won't be going back to the pre-COVID status quo for a while, especially if the US can't get  vaccination rates up.  Another mass outbreak on a cruise like early 2020 and sailings will be halted again, and the cruise lines may not be able to survive a second extended shutdown.

[harkinmr]

13 minutes ago, Host Jazzbeau said:

The pressure is now on the CDC to come back to the judge with an acceptable watered-down CSO or to give Florida what they want in the second mediation – because allowing this case to proceed raises a HUGE risk to the CDC that its powers will be significantly curtailed forevermore.  They will not want to risk that precedent.

 

As to @harkinmr's question about why the judge left the order in place or put in the language about Florida ports – maybe he wants to preserve the Alaska cruise season.  As long as the CSO remains in force for Alaska cruises, that requirement in the ATRA is met.  By the time the full trial is over and a decision rendered there, the Alaska cruise season will be over and ATRA will be moot.

But it won't be in place for the Alaska season.  On July 18 it becomes non-binding and "guidance" only unless replaced.  If the CDC files an appeal, the appellate court could leave the CSO in place pending a decision .  If that occurs then the ATRA works fine.  If the appellate court declines to take the case and the CSO is non-binding, I think that could impact the legislation.  I suppose that the cruise lines could still request a Conditional Sailing Certificate from the CDC on a voluntary basis, and that may be one way around it if the CDC is willing to issue such a Certificate and the legislation allows that. 

 

I really don't believe the judge had any particular interest in preserving the Alaska cruising season.  I believe he left the CSO in place because he hopes that the mediation will result in an alternative order by the CDC thereby eliminating his need to have an extended trial.

Edited June 19, 2021 by harkinmr

[Host Jazzbeau]

The CDC raised the ATRA issue as a scare tactic; nobody had mentioned it before.  I suspect that they will walk it back if it comes to that.

[K12Guy]

4 minutes ago, DallasGuy75219 said:

Cruises won't be going back to the pre-COVID status quo for a while, especially if the US can't get  vaccination rates up.  Another mass outbreak on a cruise like early 2020 and sailings will be halted again, and the cruise lines may not be able to survive a second extended shutdown.

Absolutely. I see no reason that any cruise line will relax vaccination standards for passengers once aboard the vessels. They may choose to comply with Florida law just to avoid a legal shoot-out that will cost a lot of time and money, but they will not make it easy for those who choose/can't be vaccinated to board. It's not to the advantage of any cruise line to have passengers sick, from any source.

[PRH]

We will not cruise if vaccinations are not required.  Until 80%of Americans are vaccinated, the risk for an outbreak and additional variants is too great.  Hopefully cruise lines will honor our cancellations and refunds our monies.  We are elite plus on celebrity but not willing to chance a cruise to nowhere because the antivaxers don’t care about putting anyone else at risk.  Talk about putting an industry at risk!

[tunaman2011]

19 minutes ago, Host Jazzbeau said:

The pressure is now on the CDC to come back to the judge with an acceptable watered-down CSO or to give Florida what they want in the second mediation – because allowing this case to proceed raises a HUGE risk to the CDC that its powers will be significantly curtailed forevermore.  They will not want to risk that precedent.

 

As to @harkinmr's question about why the judge left the order in place or put in the language about Florida ports – maybe he wants to preserve the Alaska cruise season.  As long as the CSO remains in force for Alaska cruises, that requirement in the ATRA is met.  By the time the full trial is over and a decision rendered there, the Alaska cruise season will be over and ATRA will be moot.

Greetings

 

But on the other hand if the CDC just rolls over then they may be relinquishing any real power because they will be sued any and every time they issue a order.  The "wronged" party could use this judge's ruling that the CDC has no legal authority as a basis for their suit.

 

Good Sailing

Tom

[BermudaBound2014]

1 hour ago, Turtles06 said:

 

I found it quite strange that while the judge, throughout his ruling, touted the importance of vaccines  in combatting the pandemic, and accused the CDC of discounting this 2021 development, he ignored the fact that recently-adopted Florida law not only prohibits local businesses from requiring customers to prove they've been vaccinated, but also that DeSantis is taking the position that this law applies to cruise lines.  Seemed a little off-balanced to me by the judge.

yesterday’s ruling doesn’t have anything to do with Florida vaccine identifying law, but I agree, the judge ignored the later entirely