Florida v. Becerra, CASE NO. 8:21-cv-839-SDM-AAS

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtSTEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE
PartiesSTATE OF FLORIDA, Plaintiff, v. XAVIER BECERRA, et al., Defendants.
Docket NumberCASE NO. 8:21-cv-839-SDM-AAS
Decision Date18 June 2021

STATE OF FLORIDA, Plaintiff,
v.
XAVIER BECERRA, et al., Defendants.

CASE NO. 8:21-cv-839-SDM-AAS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

June 18, 2021


ORDER

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 industry under 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 and capriciously 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

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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 notice requirement 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

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future COVID-19 infections aboard cruises decisively outweighs any economic injury to Florida. (Doc. 31 at 3-4)

BACKGROUND

Since early in 2020 COVID-19 reportedly has killed more than half a million Americans and has caused millions to become unemployed. In response to the discovery of COVID-19 aboard several cruise ships and naval vessels in early 2020, the Cruise Line International Association, a trade group including 95% of the cruise industry, on March 13, 2020, voluntarily ceased cruise ship operation. (Doc. 1-3 at 9; Doc. 31 at 2) On March 14, 2020, CDC issued a no-sail order that halted the cruise industry "for all cruise ships not voluntarily suspending operations." (Doc. 1-4 at 7) CDC extended the no-sail order on April 15, 2020; July 16, 2020; and September 30, 2020. The last extension of the no-sail order expired October 31, 2020. (Docs. 1-5, 1-6, and 1-7)

On July 20, 2020, during the second extension of the no-sail order, CDC published in the Federal Register a "Request for Information" about the safe resumption of cruise ship operation. 85 Fed. Reg. 44083 (2020); (Doc. 1-3 at 14). The request prompted about thirteen thousand responses in the allowed sixty-days, which ended about six weeks before CDC issued the conditional sailing order. Although CDC claims to have "carefully considered" the comments, CDC never responded to the comments, chose to issue the conditional sailing order under the "good cause" exception to the "notice and comment" requirement of the APA, and

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announced that "it would be impracticable and contrary . . . to the public's interest" to delay the effective date of the order.1 (Doc. 1-3 at 15, 19); 5 U.S.C. §§ 553(b)-(d).

A. The Conditional Sailing Order

On October 30, 2020, CDC issued the conditional sailing order. Framework for Conditional Sailing and Initial Phase COVID-19 Testing Requirements for Protection of Crew. (Doc. 1-3); 85 Fed. Reg. 70153 (2021). The conditional sailing order opens by explaining that COVID-19 "continues to spread rapidly around the world with no U.S. Food and Drug Administration authorized vaccine." (Doc. 1-3 at 8) Therefore, "[b]ased on the evidence gathered and explained in the No Sail Order," as well as "[c]urrent scientific evidence," (Doc. 1-3 at 12-13), the conditional sailing order continued to restrict cruise ship2 travel despite the measures, such as a "Healthy Sail Panel," assembled by prominent cruise companies and top health experts3 employed by cruise companies to address COVID-19. (Doc. 1-3 at 13-14)

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Disclaiming that the conditional sailing order constitutes a rule under the APA (Doc. 1-3 at 19) and incorporating by reference the earlier no-sail orders, the conditional sailing order explains that "[a]fter expiration of CDC's No Sail Order (NSO) on October 31, 2020, CDC will take a phased approach to resuming cruise ship passenger operations in U.S. waters." (Doc. 3-1 at 2) The conditional sailing order requires the completion of four phases before a vessel again qualifies to sail but explains that "[t]hese phases are subject to change based on public health considerations[.]" (Doc. 3-1 at 3) And the conditional sailing order explains (in several places) that "CDC will issue additional orders as needed that will be published in the Federal Register and technical instructions that will be subsequently posted on CDC's website." (Doc. 3-1 at 3, 21, 28, 34)

1. The Four Phases

Phase one obligates a cruise ship operator to build a laboratory aboard each vessel for testing crew members. In phase two, a cruise ship operator must undertake for each cruise ship a simulated voyage designed to evaluate the cruise ship operator's on-board COVID-19 mitigation measures. (Doc. 1-3 at 26-7) However, before beginning a cruise ship's first simulated voyage, the cruise ship operator must obtain, and CDC must approve, a "medical care agreement" and a "housing agreement" with health care providers and the port authority in each port-

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of-call to ensure adequate logistics and care if COVID-19 appears aboard a ship in transit.4 (Doc. 1-3 at 23-4)

Phase three requires a "conditional sailing certificate" from CDC before a cruise ship operator undertakes a restricted passenger voyage. During this phase, a cruise ship operator must apply for a conditional sailing certificate "at least 60 calendar days prior to the date on which the cruise ship operator proposes to commence restricted passenger operations." (Doc. 1-3 at 29, n.18) Under the threat of a criminal penalty imposed by 18 U.S.C. § 1001, the application must include the cruise ship operator's attestation to, among other things, the operator's compliance with CDC's (mandatory) technical instructions and orders. (Doc. 1-3 at 29-30) After CDC review, even if CDC awards the operator a conditional sailing certificate, "CDC may limit the terms or conditions of a . . . Conditional Sailing Certificate" or revoke the certificate altogether. (Doc. 1-3 at 30, 35) A cruise ship operator can appeal the denial of a certificate or can attempt to modify the conditions of a certificate by submitting the proposed modification to CDC. (Doc. 1-3 at 32, 36)

Finally, for operators with a conditional sailing certificate, phase four permits "restricted passenger voyages" — but subject to several salient strictures, including a seven-day limitation on each voyage. (Doc. 1-3) The conditional sailing order describes other requirements beyond the four-phased approach, and the conditional sailing order explains that the phases "will be further determined" by both "public

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health considerations" and a cruise ship operator's success in employing the mitigation measures specified in the conditional sailing order, including shoreside laboratory screening of crew, on-board testing capabilities for symptomatic travelers, sustained compliance with the no-sail orders' response plans, and the frequent monitoring and reporting of conditions onboard. (Doc. 1-3 at 17) In other words, even after a cruise operator's completion of the four phases, CDC retains unrestricted discretion to further condition or even suspend the conditional sailing certificate and to issue additional and different technical guidance.

2. The Conditional Sailing Order's Timeline, Findings, and Legal Justifications

The feasible timeline for a cruise company's accomplishing the four phases is unknown but certainly protracted. (As of today, few vessels have completed the four phases.) The conditional sailing order remains effective until the earliest of (1) the expiration of the HHS Secretary's declaration of a public health emergency, (2) the rescission or modification of the order by the CDC director, or (3) November 1, 2021 (at which time CDC might renew the conditional sailing order or issue a replacement order with additional and different requirements). In other words, assuming maintenance of the status quo, the conditional sailing order likely, almost certainly, will remain in effect for a year after the October 2020 issuance of the conditional sailing...

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