Coronavirus Litigation: CDC Loses Ability to Regulate Cruise Industry in Win for Florida Governor

A terse 42-word ruling issued by a 3-judge panel of the U.S. Eleventh Circuit Court of Appeals in Atlanta at 11:50 PM last Saturday night, July 17, had maintained the authority of the Atlanta-based U.S. Centers for Disease Control and Prevention to regulate the cruise industry.

Before the Court is Appellants’ “Time-Sensitive Motion for Stay Pending Appeal and Administrative Stay.” The motion is GRANTED, as Appellants have made the requisite showing. See Nken v. Holder, 556 U.S. 418, 434 (2009). One judge dissents; opinions will follow. USCA11 Case: 21-12243

Had they not ruled in the CDC's favor last week, most pandemic restrictions on cruise ships departing Florida ports (but not from other states) would have been lifted 10 minutes later (at midnight) due to a successful lawsuit filed by Florida Gov. Ron DeSantis in April. However, that order to stay the lower court's ruling that was issued on June 18 and scheduled to take effect on July 18 was short-lived; six days to be precise.

"The three-judge 11th Circuit appeals panel on Friday said it had withdrawn its earlier order and rejected the government's request because it had 'failed to demonstrate an entitlement to a stay pending appeal,'" reported David Shepardson and Lawrence Hurley for Reuters on July 23 in a breaking news (source) article.

The appeals court ruling came soon after the state of Florida had filed an emergency petition with the U.S. Supreme Court asking the high court to lift the appeals court order, warning that without action the state was "all but guaranteed to lose yet another summer cruise season while the CDC pursues its appeal," the state said in its filing to the Supreme Court.

All cruise ships in Florida will still be required to report "individual cases of illness or death and ship inspections and sanitary measures to prevent the introduction, transmission, or spread of communicable diseases," the CDC said late on Friday.

“I’m glad to see the 11th Circuit Court of Appeals reverse its prior decision and free the cruise lines from unlawful CDC mandates, which effectively mothballed the industry for more than a year,” said Governor Ron DeSantis in a press release released on Friday night. 

How did we get here?

Cruise ships and the pandemic

For many Americans, their first knowledge of the coronavirus that would cause the not-yet declared COVID-19 pandemic was the quarantining of the Diamond Princess cruise ship on Feb.5, 2020, off Yokohama, Japan in February 2020 after many passengers became ill. "Over half of the coronavirus cases outside of China are onboard the Diamond Princess cruise ship in Japan, the World Health Organization [WHO] ’s director general has said," reported The Guardian on Feb. 20.

[Planetizen's first post tagged "coronavirus" appeared on March 4, one week before the viral outbreak was declared a pandemic by WHO. It dealt with a proposed isolation center in Southern California for Americans who were passengers on board the ill-fated Diamond Princess cruise. NIMBY politics scuttled the plan.]

To some extent, rightly or wrongly, cruise ships have forever since been associated with the pandemic, perhaps because they would appear to be the perfect petri dish for a very transmissible respiratory virus.

On March 14, 2020, three days after WHO declared the viral outbreak a pandemic, CDC Director Robert Redfield "issued a No Sail Order for cruise ships effective March 14, 2020 due to the risk cruise ship travel introducing, transmitting, or spreading COVID-19." [See: CDC COVID-19 Orders for Cruise Ships.]

A "Conditional Sailing Order" was issued on Oct. 31, 2020, replacing the ban. "To resume carrying passengers, cruise operators would first need to conduct mock voyages demonstrating their ships’ safety," among other restrictions placed on the industry,  reported Dave Sebastian for The Wall Street Journal on Oct. 30.

The risk of contracting the virus on cruise ships remains higher than on other settings such as airplanes due to the longer duration, cohabitation and older passenger demographics, said Martin Cetron, director of the CDC’s division of global migration and quarantine.

CDC Director Robert Redfield had recommended in September extending the no-sail order into February but was overruled at a White House meeting of the Coronavirus Task Force, The Wall Street Journal reported. White House officials didn’t want to see the cruise industry further damaged and lose more jobs in hubs like Miami, according to a person familiar with the matter.

Essentially the dynamics behind that decision last October replayed themselves this spring and summer in what Planetizen has tagged, public health vs. the economy. Gov. Ron DeSantis can be faulted or credited, depending on one's perspective on that debate, by "suing the federal government in a long-shot attempt to get the U.S. Centers for Disease Control and Prevention to allow cruising to resume immediately," reported Taylor Dolven for the Miami Herald on April 8.

Uphill legal battle

Dolven consulted the experts, who turned out to be wrong.

Legal experts say the lawsuit has very little chance of proceeding. The federal government has broad control to regulate ports of entry and international commerce.

“I think it’s got negligible viability approaching zero,” said Larry Gostin, professor of global health law at Georgetown University and director of the World Health Organization’s center on global health law. “Under no circumstance could I see a judge striking down a regulation that applies to cruise ships and the safety of its passengers because its passengers are going to be introducing infectious diseases back into the U.S. if they get infected on the ship. The U.S. has a very strong interest and power to stop that.”

Gostin was proven wrong.

"In a 124-page ruling, U.S. District Judge Steven Merryday of the Middle District of Florida said the agency’s “conditional sail order” — a framework of regulations dictating how cruises can restart in the U.S. during the COVID-19 pandemic — can remain in place for Florida cruises only until July 18, granting DeSantis’ request for a preliminary injunction while the full case moves forward," reported Dolven on June 18.

In Friday’s order, which applies only to cruises from Florida, Judge Merryday ruled that the CDC did not sufficiently justify the need for its cruise safety regulations, and that Florida has authority to sue the CDC in the first place because of “sufficient likelihood of continued economic harm” to the state caused, in part, by the regulations.

“Today’s ruling is a victory for the hardworking Floridians whose livelihoods depend on the cruise industry,” said Florida Attorney General Ashley Moody in a statement. “The federal government does not, nor should it ever, have the authority to single out and lock down an entire industry indefinitely.”

COVID and AIDS

In his ruling, the judge compared a respiratory virus with a sexually transmitted virus, which perhaps helps to explain the unexpected decision.

Merryday called the CDC’s claim it has discretion to shut down a cruise because of COVID-19 transmission, “breathtaking, unprecedented, and acutely and singularly authoritarian” and compared it to a hypothetical shutdown of sexual intercourse nationwide to prevent the spread of AIDS.

 Angie DiMichele and  Chris Perkins of the South Florida Sun Sentinel report in greater depth on the stunning turnaround by the appeals court panel.

Bob Jarvis, a professor of law at Nova Southeastern University, said he can’t recall ever seeing a court reverse course so quickly. “It’s fairly unprecedented for a court to change its mind on the fly like this,” he said.

“The real question is: what happened this week to make those two judges from last week change their minds?” Jarvis said. “Because that’s a very big change.”

Return to normal?

"Following today’s ruling by the Eleventh Circuit, the cruise industry will be able to resume operations immediately," states the last sentence in DeSantis's press release. With the end of most restrictions on the cruise industry, that may find it difficult to prevent COVID outbreaks due to the high prevalence of the virus – now the highly transmissible Delta variant.

The Sunshine State leads the nation in new daily cases of COVID-19, averaging almost 10,500 daily new cases on July 24, followed by California (almost 6,300 new cases) and Texas (almost 5,200 daily new cases), according to The New York Times coronavirus database. It has the nation's third-highest daily case incidence, 49 per 100,000 people, after Arkansas (56 per 100k) and Louisiana (52 per 100k). The average in the U.S. is 16 per 100k.

DeSantis "argued on Wednesday [July 21] that the recent spike is all part of the seasonal fluctuations in the virus, even as he urged Floridians to get vaccinated," noted  Dan Merica for CNN in a political analysis noting the he "is up for reelection in 2022 and has long been rumored as a possible presidential candidate in 2024."

Vaccine verification prohibition leads to another lawsuit

The cruise industry will also have to deal with an executive order signed by Gov. DeSantis on May 3 "forbidding local governments and businesses from requiring so-called 'vaccine passports' to show proof that customers have been inoculated against the coronavirus, reported WINK on March 29.

“It’s completely unacceptable for either the government or the private sector to impose upon you the requirement that you show proof of vaccine to just simply participate in normal society,” the governor said.

"Senate Bill 2006 was signed into law on May 3, making that executive order official," reported CNN on July 14. On July 13, Norwegian Cruise Line Holdings filed suit over the law.

According to the complaint filed Tuesday, NCLH says the lawsuit is a "last resort" because Florida had indicated it would prevent the company from "safely and soundly resuming passenger cruise operations" next month. It described the state law as an "anomalous, misguided intrusion."

Hat tip to Kaiser Health News.

Related:

• Mandating and Verifying Vaccinations, July 19, 2021