Norwegian Cruise Line Holdings LTD v. State Surgeon Gen.

• Decision Date: 22 December 2022
• Docket Number: 21-12729
• Citation: 55 F.4th 1312
• Parties: NORWEGIAN CRUISE LINE HOLDINGS LTD, a Bermuda Company, NCL (Bahamas), Ltd., a Bermuda Company agent of Norwegian Cruise Line, Seven Seas Cruises S. De R.L. LLC, d.b.a. Regent Seven Seas Cruises, Oceania Cruises S. De R.L., d.b.a. Oceania Cruises, Plaintiffs-Appellees, v. STATE SURGEON GENERAL, FLORIDA DEPARTMENT OF HEALTH, in his official capacity, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

55 F.4th 1312

NORWEGIAN CRUISE LINE HOLDINGS LTD, a Bermuda Company, NCL (Bahamas), Ltd., a Bermuda Company agent of Norwegian Cruise Line, Seven Seas Cruises S. De R.L. LLC, d.b.a. Regent Seven Seas Cruises, Oceania Cruises S. De R.L., d.b.a. Oceania Cruises, Plaintiffs-Appellees,

v.STATE SURGEON GENERAL, FLORIDA DEPARTMENT OF HEALTH, in his official capacity, Defendant-Appellant.

No. 21-12729

United States Court of Appeals, Eleventh Circuit.

Filed: December 22, 2022

Derek L. Shaffer, William Anthony Burck, Jonathan Gordon Cooper, Quinn Emanuel Urquhart & Sullivan, LLP, Washington, DC, John Francis O'Sullivan, Olga Marie Vieira, Quinn Emanuel, Miami, FL, for Plaintiffs-Appellees.

Charles J. Cooper, William V. Bergstrom, Joseph Masterman, Peter A. Patterson, Nicholas Varone, for Defendant-Appellant.

Before William Pryor, Chief Judge, Rosenbaum, and Brasher, Circuit Judges.

William Pryor, Chief Judge:

We must consider whether this appeal of a preliminary injunction is moot. Norwegian Cruise Lines Ltd. obtained the injunction barring the Florida Surgeon General from enforcing a prohibition against businesses requiring proof of vaccination

as a condition of service. But Norwegian recently filed a suggestion of mootness stating that it no longer requires proof of vaccinations on its cruises. Yet, Norwegian's filings make clear that it has not suspended its vaccination requirements permanently or categorically. It also continues to defend its entitlement to equitable relief by asking us to leave the preliminary injunction intact. Based on these filings, Norwegian has not met its heavy burden of establishing that this appeal is moot.

I. BACKGROUND

In July 2021, Norwegian challenged the enforcement of a Florida law prohibiting any business operating in the state from "requir[ing] patrons or customers to provide any documentation certifying COVID-19 vaccination

." FLA. STAT. § 381.00316(1). See generally

Norwegian Cruise Line Holdings Ltd. v. State Surgeon Gen. , 50 F.4th 1126 (11th Cir. 2022). Norwegian argued that the state statute violated the First Amendment and Dormant Commerce Clause. And it moved to enjoin the Surgeon General from enforcing the statute against Norwegian and to obtain a "declaration that [the statute] is unlawful as applied to" Norwegian.

The district court preliminarily enjoined the Surgeon General "from enforcing [the statute] against [Norwegian] pending resolution of the merits of this case." Florida appealed, and Norwegian defended the preliminary injunction. We heard oral argument in May 2022.

On October 4, Norwegian filed a "suggestion of mootness," which we construed as a motion to dismiss the appeal as moot. Norwegian simultaneously filed a motion for an indicative ruling in the district court to lift the preliminary injunction. Norwegian maintained that it had "remov[ed] all COVID-19 testing, masking and vaccination

requirements for its cruises." (Citation and internal quotation marks omitted). As a result, Norwegian argued that the appeal was "likely moot." Florida responded and opposed Norwegian's suggestion of mootness. On October 6, we issued a published opinion vacating the preliminary injunction on the merits. See

Norwegian , 50 F.4th at 1130. We withheld the mandate and requested supplemental briefing on whether the appeal was moot.

Norwegian continued to argue that the appeal is moot. It stated that the "dissipation of the COVID-19 pandemic" had allowed it to "relax[ ] ... [its] institutional protocols" and remove its vaccination

requirements. It argued that these "changed circumstances" ended a "live controversy" between the parties. Norwegian acknowledged that its revised policy "does not supersede country specific requirements," meaning that should a country reimpose a vaccine mandate, Norwegian would too. But it maintained that "no country-specific requirements have implicated any cruises departing from Florida."

In its supplemental briefing, Norwegian abandoned its suggestion that the preliminary injunction should be lifted. Norwegian instead argued that the preliminary injunction should remain in place. Norwegian stated that "[t]his appeal should be dismissed without vacating the district court's order." (Emphasis added.) It doubled down on that position in its reply brief by maintaining that we should leave the preliminary injunction "undisturbed." And Norwegian has never moved to dismiss the underlying case. Although Norwegian has argued that this appeal is moot and should be dismissed, Norwegian has not moved to dismiss the action .

The Surgeon General responded that the appeal is not moot. He argued that "Norwegian has not entirely rescinded its vaccination

documentation policy" because Norwegian "g[ave] no assurances that [it] will not reimplement the policy with full force" and its removal of the vaccination requirements was "not categorical." The Surgeon General pointed out that Norwegian still maintained the authority to "den[y] boarding if all country specific requirements are not met." He also argued that Norwegian, "[a]s the prevailing party in the district court, [could not] voluntarily rescind its offending policy to moot [the] appeal" and preserve the judgment in its favor below.

II. DISCUSSION

This dispute concerns the "constitutional command that the federal judiciary hear only ‘Cases’ and ‘Controversies.’ " Vital Pharms., Inc. v. Alfieri , 23 F.4th 1282, 1288 (11th Cir. 2022) (quoting U.S. CONST. art. III, § 2). "[B]ecause a case or controversy must exist throughout all stages of litigation, we must ensure—up until the moment our mandate issues—that intervening events have not mooted the appeal ...." Id. (internal quotation marks and citations omitted). "A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.’ " Already, LLC v. Nike, Inc. , 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) (quoting Murphy v. Hunt , 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) ). The "party seeking dismissal," World Wide Supply OU v. Quail Cruises Ship Mgmt. , 802 F.3d 1255, 1259 (11th Cir. 2015) (internal quotation marks omitted), bears the "heavy" "burden" of establishing mootness, Cnty. of Los Angeles v. Davis , 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). For the following reasons, Norwegian has not met that heavy burden.

We agree with the Surgeon General that a "live dispute" exists because Norwegian has not established that it has relaxed its vaccination

requirements permanently or categorically. "The possibility that [a party] may change its mind in the future is sufficient to preclude a finding of mootness." United States v. Generix Drug

Corp. , 460 U.S. 453, 456 n.6, 103 S.Ct. 1298, 75 L.Ed.2d 198 (1983). Norwegian has offered no evidence of its vaccine policies or its intentions for the future beyond the boilerplate statement that it is not requiring COVID-19 vaccination "for now and for the foreseeable future." Indeed, Norwegian appears to concede that it "has not ‘abolished its policy forevermore.’ " We see no reason to believe that Norwegian will not seek to reinstate its policy given its continued insistence that the Florida law is unconstitutional. See

Jager v. Douglas Cnty. Sch. Dist. , 862 F.2d 824, 833–34 (11th Cir. 1989) (finding no mootness when defendants "never promised not to resume the prior practice" and "continue[d] to press on appeal that the voluntarily ceased conduct should be declared constitutional"). For all we know, with COVID-19 cases currently rising, Norwegian may do so.

Norwegian's removal of its vaccination

requirements is also not categorical, which reduces the likelihood that its protocols have been permanently changed. As the Surgeon General argues, and Norwegian concedes, the revised policy "does not supersede country specific requirements." Norwegian will defer to other countries as to whether proof certifying COVID-19 vaccination is required on its cruises—a decision outside its control.

We have held that an appeal is not moot where the defendant might exercise its "discretion to change its policy" back while continuing to press the old policy's validity. ACLU v. Fla. Bar , 999 F.2d 1486, 1494–95 (11th Cir. 1993). So it is here. Given that Norwegian has acknowledged that it must change its vaccine protocols to accommodate "country specific requirements," it has necessarily asserted discretion to reimpose its vaccination

requirements. Only one country that Norwegian visits needs to require vaccines for it to do so. Given the rapidly shifting nature of the pandemic, Norwegian has not persuaded us that it is an "exceedingly remote" possibility that some countries—and, thus, Norwegian—will reimpose vaccine requirements.

Norwegian's filings establish that the appeal is not moot. Norwegian has never argued that the case itself is moot. That is, Norwegian has not expressed any intent to dismiss the action were we to remand. Norwegian has had multiple opportunities to clarify its position. After Norwegian stated in its "suggestion of mootness" that it would move to lift the stay, we asked the parties for supplemental briefing. Norwegian told us in both of its supplemental briefs that the preliminary injunction should not be vacated. Norwegian stated that the injunction should be left "undisturbed." Cf. Frank v. Minn. Newspaper Ass'n, Inc. , 490 U.S. 225, 227, 109 S.Ct. 1734, 104 L.Ed.2d 264 (1989) (finding an appeal moot when "appellee, the original plaintiff in the case, state[d] its willingness to forego any further claim to the declaratory and equitable relief sought in its complaint"). We take Norwegian at its word.

How can it be that a case Norwegian does not want dismissed involving a preliminary injunction that Norwegian does not want vacated is moot? Norwegian has offered no explanation for this position. The most plausible one is that Norwegian believes there...