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State Argues CDC Violated Cruise Case Injunction

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

The state suggested that the CDC was in contempt of court based on a letter the CDC sent to the cruise industry after the appeals court reversal.

A federal judge put off acting on a request by Florida to find that the Centers for Disease Control and Prevention violated an injunction against pandemic-related restrictions on the cruise-ship industry.

The decision Monday by U.S. District Judge Steven Merryday came after a flurry of legal activity that started Friday when a federal appeals court blocked restrictions that the CDC had imposed on the industry because of COVID-19. The appeals court kept in place a preliminary injunction that Merryday issued against the CDC last month.

On Saturday, Florida Attorney General Ashley Moody’s office filed a motion asking Merryday to find that the CDC had violated the injunction and suggested that the CDC was in contempt of court. That motion was based on a letter that the CDC sent Friday to the cruise-ship industry after the appeals court ruling.

But CDC attorneys fired back Sunday, describing as “baseless” the state’s arguments that the federal health agency violated the injunction.

Merryday issued an order Monday saying that for “a time, the disposition of Florida’s motion is deferred.”

The wrangling came in a battle that has drawn national attention as Moody and Gov. Ron DeSantis argued the CDC overstepped its legal authority in imposing restrictions on the cruise-ship industry --- a position Merryday agreed with in the preliminary injunction.

The case focuses heavily on what is known as a “conditional sailing order,” which the CDC issued in October. The conditional sailing order included a phased approach to resuming cruising during the pandemic, with ship operators needing to meet a series of requirements.

After Friday’s ruling by a panel of the 11th U.S. Circuit Court of Appeals, the CDC sent a letter to the cruise industry saying that the conditional sailing order and related measures had become “nonbinding recommendations” because of the injunction.

The letter requested that cruise ship operators inform the CDC about ships that voluntarily comply with the conditional sailing order. Also, the letter outlined requirements for ships that do not voluntarily comply, including requirements about inspections and reporting illnesses or deaths.

In addition, ships not voluntarily complying would be designated as “gray” under a CDC color-coding system, the letter said.

“This means that CDC cannot confirm that the cruise ship operator’s health and safety protocols align with CDC’s standards for protecting passengers, crew, port personnel and communities against the public health risks posed by COVID-19,” the letter said.

In asking Merryday to find that the CDC was in violation of the injunction, attorneys in Moody’s office accused the federal agency of trying to “coerce” the cruise industry to comply with the conditional sailing order.

“First, the federal government cannot avoid injunctions issued by federal courts by claiming the enjoined requirements are now ‘voluntary,’ and then threatening new government enforcement against those who refuse to ‘voluntarily’ comply, but not those who agree to voluntarily comply,” the state’s motion said. “To hold otherwise would provide a roadmap for the executive branch --- in all or nearly all cases --- to avoid the checks and balances provided by the judiciary, a central feature of our constitutional republic.”

But in a 10-page document filed Sunday, the CDC said it had complied with the injunction.

“Since the injunction became effective on July 23, CDC has not enforced the CSO (conditional sailing order) or any such later measures against any such cruise ship,” federal attorneys wrote. “Florida does not and cannot contend otherwise. The injunction did not prohibit cruise industry operators from continuing to follow the CSO and technical guidance voluntarily, in collaboration with the CDC. Ship operators may well conclude that there are business advantages to continuing that collaboration, which allows CDC personnel to assist cruise ship operators in preventing and containing outbreaks onboard.”

In his decision about deferral, Merryday wrote that the state’s motion seems to “anticipate a violation that has not occurred and that might not occur.”

Merryday said the state could provide additional information if the CDC violates the injunction, “including a violation effected by any pattern of vexatious, harassing, coercive, discriminatory, bad faith, or retaliatory conduct that amounts in effect to CDC’s undertaking to enforce a matter that CDC is enjoined from enforcing or undertaking to punish, harass, or retaliate against a ship operator for not voluntarily complying with the conditional sailing order, the … letter or a later message from CDC directed to a similar end.”

After Merryday issued the injunction last month against the restrictions, the CDC appealed to the Atlanta-based appeals court. As part of that, the CDC asked for a stay of the injunction until the appeals court could consider the underlying issues in the case.

A three-judge panel initially granted a stay of the injunction but then reversed course Friday and denied the stay. That put Merryday’s injunction into effect.

Christine Sexton - News Service of Florida