The lawsuit and related motion for preliminary injunction against the Centers for Disease Control and Prevention (CDC) and the U.S. Department of Health and Human Resources filed by the state of Florida (which Alaska and Texas have joined) have, in my opinion, virtually no chance of success.
A preview of how the federal judge, Steven D. Merryday, views the issues will come as early as tomorrow morning when the federal court in Tampa convenes a hearing on Florida’s motion for preliminary injunction. The issue has been fully briefed by the parties. The federal judge presiding over the case will decide the initial issue of whether the state of Florida is entitled to the extraordinary relief it seeks – that a federal health agency should somehow immediately be stripped of its traditional duty to place health restrictions on the international cruise industry which is trying to resume operations during the ongoing deadly pandemic.
My review of the CDC’s memorandum in opposition to Florida’s motion for preliminary injunction, which you can read here, indicates that there is little chance that the federal court will rule that the CDC’s authority should be limited by Florida, much less on an emergency basis as Florida requests. As the CDC’s memorandum explains, “the United States remains in the midst of a once-in-a century pandemic that has killed over half a million Americans and three million people worldwide. (According to John’s Hopkins Coronavirus Resource Center as of today there have been over 582,000 deaths in the U.S. and over 3,307,000 deaths in the world due to COVID-19). Early in the pandemic, several deadly outbreaks were clustered on cruise ships, like the Diamond Princess in Japan, and the Grand Princess in the San Francisco Bay. These outbreaks required vast expenditures of government resources to evacuate, quarantine, isolate, house, and treat passengers. These experiences demonstrated that cruise ships are uniquely suited to spread COVID-19, likely due to their close quarters for passengers and crew for prolonged periods, and other factors.”
No Cruise Lines Have Intervened in the Lawsuit, Nor Have They Submitted The Necessary Agreements with Port, Medical or Housing Authorities
As the CDC points out, none of the cruise lines have sought to intervene in the pending lawsuit. All of the cruise lines are working in partnership with the CDC through the phased approach to resuming cruising. Currently, the industry is in Phase 2(a), in which “cruise ship operators build additional testing capacity and negotiate agreements with port and local health authorities in each jurisdiction in which they intend to dock to ensure that these local authorities agree that any outbreaks can be safely managed.” Although the CDC’s initial conditional sailing order dated October 30, 2020 required the cruise lines to submit proof of agreements with port, medical and housing authorities to provide accommodations and medical treatment in the event that cruise passengers become infected by or exposed to the virus, no cruise lines to date have complied with this requirement. As the CDC explains:
“The purpose of this requirement is to ensure that cruise operators have pre-arranged with port authorities how operations and outbreaks will be handled during the pandemic – e.g., that if a cruise line’s outbreak plan is to shunt thousands of potentially infected passengers onto a small community in Alaska that does not have housing or medical facilities, the cruise line must have the local authority’s consent to do so and must have made arrangements for adequate housing and care.”
The CDC cites three primary reasons why the Court should deny Florida’s motion for a preliminary injunction.
1. The State of Florida (and Alaska and Texas) Lack Legal Standing
First, the state of Florida lacks legal “standing” to bring the lawsuit in the first place.
As we pointed out in our article titled “Governor DeSantis’ Lawsuit Against the CDC – “A Craven Political Stunt Pandering to Cruise Lines,” the losses incurred by the cruise lines due to the pandemic and the halting of cruise ships are not losses incurred by the state of Florida. In every lawsuit, the person or entity who brings the lawsuit must have actually suffered the harm in order to have legal standing. In other words, you can’t sue if your neighbor is injured. Here, there’s no basis for a state to assert a legal case by referring to the financial losses of corporations which chose not to incorporate in Florida but incorporate outside of the state in places like Panama (Carnival), Liberia, Africa (Royal Caribbean) or Bermuda (NCL) and register their ships in Panama and the Bahamas in order to avoid all U.S. wage and labor laws.
The only losses which Florida has possibly incurred are “reemployment assistance benefits” which Florida says are $20,000,000 paid to “6,464 former cruise industry employees” and, arguably, lost tax revenue associated with cruise ship operations estimated to be $82 million. These alleged and speculative figures are largely “de minimis” figures in any event, considering that Governor DeSantis “has recommended a Fiscal Year 2021-2022 budget of $96.6 billion.”
” . . . Florida speculates that lost tax revenue associated with cruise ship operations might be $82 million. Johnston Decl. ¶ 5.12 But in a state with a Chief Executive that has recommended a Fiscal Year 2021-2022 budget of $96.6 billion, the amount at issue is roughly 0.085% of the state’s budget.”
2. Florida Unreasonably Delayed Claiming That The CDC’s Order Irreparable Harmed It
Secondly, the state of Florida unreasonably delayed seeking to prohibit the CDC from restricting cruise operations. The CDC argues that Florida “sat on its supposed rights for well over a year while cruise ship operations were restricted. It cannot now establish that irreparable harm would be prevented by letting cruise ships resume operations slightly more quickly than CDC believes is necessary to protect the public’s health.” The idea of a preliminary injunction is premised on the need for speedy and urgent action to “protect a party’s rights before a case can be resolved on its merits.” Florida seeks to preliminarily enjoin the CDC from enforcing its conditional sailing order, but it “offers no explanation why it waited nearly six months after the temporary emergency order was issued” (October 1, 2020) to seek judicial review.
The CDC makes a compelling case that Florida not only waited too long to bring legal action, but it failed to establish that it suffered actual “irreparable harm” which would justify the “extraordinary and drastic remedy” of a preliminary injunction,
3. Florida Can’t Establish A Likelihood That it Will Prevail On the Merits
Thirdly, it is entirely questionable that Florida can establish a “likelihood of success on the merits of its claims.” Considering that the CDC has the authority and responsibility of enacting protocols which are reasonably designed to fight this pandemic which has infected 32,756,000 U.S. citizens and killed over 582,000 Americans, this is an area traditionally reserved for health decisions at the discretion of the federal government. Long before cruise ships sailed, the federal government has exercised jurisdiction in protecting Americans from international viruses coming ashore by ships.
Obviously, local state and city health inspectors do not have jurisdiction to board and inspect vessels engaged in international sailings. This is exclusively the jurisdiction reserved to federal agencies like the CDC. The lawsuit and motion represent a rank attempt by state politicians, who have demonstrated contempt for the federal government and who have refused to comply with the CDC’s health protocols, to replace the experience and scientific reasoning of experienced CDC officials with their own politically influenced opinions which potentially adversely affect the lives and health of U.S. citizens.
The Federal Government Has Traditionally Protected the U.S. Public Health
The Public Health Service Act (“PHSA”) has long been shown to consolidate and codify the federal government’s “basic authority to make regulations to prevent the spread of [communicable] disease into this country or between the States.” The Federal statute authorizes the CDC “to make and enforce such regulations as in [the Secretary’s] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”
The CDC points out that there is a long history of the federal government combating the spread of communicable disease, including the regulation of vessels in interstate and international travel. Congress enacted the first federal quarantine law in 1796. Following a subsequent yellow fever outbreak, Congress replaced this federal act with a federal inspection system for maritime quarantines. Nearly a hundred years later, Congress authorized the Secretary of the Treasury to adopt additional regulations to prevent the introduction of disease into the United States or across state lines where the Secretary considered state or local regulation inadequate.
The lawsuit makes the extraordinary allegation the federal statutes and regulations do not empower the CDC to “make or enforce regulations that suspend the operations of cruise ships . . . ” Of course, this is a preposterous assertion. Over the years, the CDC has entered “no sail orders” when hundreds of passengers and crew became ill with norovirus or other gastrointestinal illnesses. Back in 2011, one of the most notable incidents involved the CDC shutting down the Celebrity Mercury (since sold) which was sailing out of Charleston, South Carolina. After three consecutive norovirus outbreaks which sickened literally thousands of guests and crew members, the CDC finally prohibited the cruise ship from sailing and further harming the public by entering a strict “no sail” order.
Cruise Ships Are Uniquely Different Than Other Industries
Florida argues that the CDC supposedly treats the cruise industry differently from other other industries. But the CDC has proven “that cruise ships are unique.” The CDC’s prior orders “found markedly higher transmission rates on board cruise ships than exist in other settings; crew and passengers live onboard for prolonged periods of time in enclosed spaces in which social distancing is challenging at best . . .”
A common comment left on our Cruise Law News Facebook page is that the CDC “treats travel by airplane differently than by cruise ship.” But there is a world of difference. There’s no comparison between the potential viral exposure during a short flight from Atlanta to Miami (less than 2 hours) or from New York (less than 3 hours) with the fresh air via airplane ventilation systems which include HEPA filters where you travel with just 100 other passengers or less – versus a week long cruise to the Caribbean (168 hours) with thousands of passengers and crew members from around the world congregating while eating and drinking in bars and restaurants and visiting ports with few local people vaccinated.
The CDC filed a declaration of a senior CDC official, Captain Aimee Treffiletti, who “explains that contract tracing required for cruise passengers in early 2020 was far greater than that for air passengers during the same time frame, and that cruise ships have unique conditions on board that exacerbate transmission.” Treffiletti Decl. ¶¶ 21-22, 76. Florida argues “that a cruise ship is like an airplane or a hotel, but offers nothing in support of that opinion. according to the CDC which concludes that “the data contradicts (the) unfounded claim . . .”
Captain Treffiletti also established that contrary to CLIA’s false claim that there have been less than 50 COVID-19 cases on cruise ships sailing from Europe since the pandemic, there actually have been over 200 COVID cases, as we discussed last week (77% more than CLIA admits).
Hearing Tomorrow – Stay Tuned
Judge Merryday will entertain oral argument tomorrow morning at 9:00 a.m. There does not appear to be a way to listen to the argument remotely. The issues for the trial court’s determination are all fully briefed by the parties; there will be no live testimony, just argument by the lawyers.
My prediction? Hard core cruise fans and the usual travel writers and cruise bloggers will howl in protest, claiming that the judge is somehow biased against the cruise industry, when he denies Florida’s request to interfere with the CDC’s health protocols.
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Photo credits: Top – Centers for Disease Control and Prevention; Carnival Cruise Line ships – Jim Walker; Ambulance attending to Royal Caribbean’s Oasis of the Seas – Robert Madison Walker.