Judge Enjoins Federal “No Sail Orders” Against Cruise Industry, Hands Florida Gov. Ron DeSantis Victory
“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 ….”
Florida Governor Ron DeSantis has been a leader, perhaps the leader, fighting irrational and non-scientific lockdown orders from the federal government.
The cruise industry, which is a major employer and economic driver in Florida, was shut down by federal “no sail” orders. DeSantis sued in federal court in Tampa.
DeSantis was just handed a victory, as the federal judge granted a preliminary injunction.
The Court Order (pdf.) is 124 pages. Here’s the court’s summary of the claims and defenses:
In response to incidents of COVID-19 infection aboard cruise and naval vessels in early 2020, the Centers for Disease Control and Prevention (CDC) issued a series of “no-sail orders” that halted the cruise industry’s operation from March 2020 through October 2020. Effective October 30, 2020, CDC issued a “conditional sailing order,” the stated purpose of which is to safely re-open the cruise industryunder a four-phased “framework.”
In this action Florida asserts five claims. In Count I, Florida alleges that the conditional sailing order exceeds CDC’s statutory and regulatory authority. (Doc. 1 at 13–15) In Count II, Florida alleges that CDC acted arbitrarily andcapriciously in issuing the conditional sailing order. Specifically, Florida argues in Count II that CDC failed to recognize the prevalence of vaccines, the success of foreign sailing, the effectiveness of COVID-19 mitigation measures, and the opportunities revealed by evolving public health research — all of which would counsel against the restrictions imposed by the conditional sailing order.
Also, Florida argues in Count II that CDC arbitrarily failed to consider “lesser alternatives,” treated the cruise industry differently from other industries, and ignored local health measures. (Doc. 1 at 15–18) In Count III, Florida alleges that CDC unreasonably delayed agency action necessary “to allow the cruise industry to safely re-open.” (Doc. 1 at 18) In Count IV, Florida alleges that CDC failed to conduct proper notice and comment rulemaking and improperly relied on the “good cause” exception to the noticerequirement under 5 U.S.C. § 553(b)(B). Finally, in Count V, Florida alleges that if interpreted according to CDC the enabling statute, 42 U.S.C. § 264, on which CDC relies, effects an unconstitutional delegation of legislative authority. (Doc. 1 at 20) Facing an allegedly irreparable injury, Florida moves (Doc. 25) for a preliminary injunction.
Citing four broad arguments, CDC opposes a preliminary injunction. First, CDC argues that Florida lacks standing because the conditional sailing order regulates cruises, not states. Second, CDC argues that Florida cannot establish irreparable harm because Florida began this action months after CDC issued the sailing order and that, because cruises can sail by mid-summer, Florida cannot establish an imminent and irreparable injury. Third, CDC contends the conditional sailing order falls within CDC’s statutory and regulatory authority. Fourth, CDC contends that the conditional sailing order evinces “reasoned decision-making” and reasonable conclusions, “especially given the extraordinary deference due to [CDC] during the ongoing public health emergency.” Finally, CDC claims that the threat of future COVID-19 infections aboard cruises decisively outweighs any economic injury to Florida. (Doc. 31 at 3–4)
Over the course of the 100+ pages, the court went through each of the claims and defenses. At page 122 the court summarized its ruling:
This order resolves Florida’s motion for a preliminary injunction. In brief, this order confirms Florida’s constitutional and statutory standing to assert the claims in the complaint. 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.
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. 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)…..
The Judge, however, created some interim deadlines which give the feds a second bite at a much smaller apple, giving them the chance to propose more limited restrictions that the court would then consider:
…. 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. The motion for the proposed injunction must support the proposed terms with current scientific evidence and fully disclose — if unavailable to the public — scientific evidence, including methodology, raw data, analysis, and the like and the names and qualifications of the scientists participating in the study, modeling, or the like. If CDC moves under this paragraph, Florida must respond within seven days. A hearing will occur immediately after Florida’s response. Additionally, if circumstances materially change at any time, either party can request a hearing to modify this injunction, a hearing will occur immediately (within twentyfour hours, if necessary), and an order resolving the motion will issue immediately.
DeSantis issued a Statement declaring victory:
“The CDC has been wrong all along, and they knew it,” said Governor Ron DeSantis. “The CDC and the Biden Administration concocted a plan to sink the cruise industry, hiding behind bureaucratic delay and lawsuits. Today, we are securing this victory for Florida families, for the cruise industry, and for every state that wants to preserve its rights in the face of unprecedented federal overreach.”
It’s not over. But it is a victory for Florida and the cruise industry, and for DeSantis.DONATE
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