View Point: "Why the State of Florida Will Lose its Motion for Preliminary Injunction Against the CDC"

[harkinmr]

Just now, KennyFla said:

Here is the current status of each cruise ship with the CDC.  How did this happen if the cruise lines have not been working with the CDC?   Before you get into wordplay, working/negotiating is the same thing.  The cruise lines have been acting in good faith.  The CDC has not.

 

https://www.cdc.gov/coronavirus/2019-ncov/travelers/crew-disembarkations-commercial-travel.html

 

 

The list you are referring to results from reporting requirements for ships returning to US waters and the ability to move crew commercially through the US.  It is only tangential to the restart as part of Phase 1.  You can make whatever statements you like about the CDC’s motives.  Doesn’t mean they are accurate. And, again, none of that plays into this lawsuit as the cruise lines are not a party. 

[KennyFla]

3 minutes ago, harkinmr said:

  You can make whatever statements you like about the CDC’s motives.  

I don't know if the CDC is purposely stopping cruising, or when it comes to cruising they are just totally incompetent.

 

But there is a singling out of the cruise industry over return to operation.

 

 

[ace2542]

4 minutes ago, KennyFla said:

I don't know if the CDC is purposely stopping cruising, or when it comes to cruising they are just totally incompetent.

 

But there is a singling out of the cruise industry over return to operation.

 

 

But cruise ships are superspreaders for this kind of thing to be fair. More so than any other type of holiday. You can't deny that.

[ShipFan13]

https://www.baynews9.com/fl/tampa/news/2021/05/12/ag-ashley-moody-s-lawsuit-over-cdc-cruise-restrictions-to-go-before-judge

 

Hope it goes well and we can cruise...fingers and toes crossed..

[KennyFla]

36 minutes ago, harkinmr said:

The meeting in the photo was DeSantis meeting with cruise line heads and Pence.  The state was not in any direct discussions with the CDC.  It’s kind of amusing that Pence overrode the NSO extension, which only served to bring in the CSO expanding the CDC’s ability to oversee the restart. Not a great move in hindsight. 

So you are admitting the CSO was retaliation for being overruled last October.   We finally agree on something.

[pinkie60]

38 minutes ago, DCGuy64 said:

This "article" is nothing but another sleazy hit job against the cruise industry. The website's "motto" is "Everything Cruise Lines Don't Want You To Know." That's the kind of verbiage used by ambulance chaser lawyers with their "1-800-BAD-DRUG" late-night commercials. Please. How about an analysis from a legal expert WITHOUT an axe to grind?

I did read the article, and it is very interesting. I can't speak to whether Florida lacks standing. The legal merits of the case are one thing, but this author's take on everything is suspect from the get-go. For one thing, he again parrots the same tired BS about cruise ships being particularly suited to the transmission of illness. Sorry, but that is SO pre-Covid. He mentions the once-in-a-century pandemic and the number of lives taken, etc., all of which is true. BUT SO IS THE INDUSTRY'S RESPONSE, and that he addresses barely. It is nothing short of duplicitous to point out the supposed failures of the industry (in which he hearkens again back to March 2020) but not to acknowledge a) the efforts by the cruise industry to keep people safe nor b) the lack of widespread outbreaks onboard any of the vessels that have sailed since last year. He does the classic apples vs oranges thing of comparing a short, 2-hour flight to a long cruise with thousands of unvaccinated people crammed together. Considering the vaccinations we've had, the capacity requirements, the social distancing, the temperature checks, the cruiseline-sponsored excursions, and the enhanced cleaning and fresh air protocols (none of which he bothers to mention, how convenient), it's clear he doesn't understand the subject matter. This guy has an agenda, and it's clear from the outset he hates the industry. I am not particularly hopeful about the outcome of this lawsuit for various reasons. For one thing, and here I agree with the author, the representatives of the major cruise lines have not joined it. Maybe that's because they don't want to make enemies of the CDC, I don't know. But I do think that's significant. Nonetheless, it's disappointing to read something that the OP @Stallion clearly wants people to believe is some objective, sober legal analysis of this case, when it's nothing but a hit job by a cruise industry hater. Move along, folks, nothing to see here.

Amen Brother🥰

[chengkp75]

20 minutes ago, KennyFla said:

Here is the current status of each cruise ship with the CDC.  How did this happen if the cruise lines have not been working with the CDC?   Before you get into wordplay, working/negotiating is the same thing.  The cruise lines have been acting in good faith.  The CDC has not.

 

https://www.cdc.gov/coronavirus/2019-ncov/travelers/crew-disembarkations-commercial-travel.html

 

 

The requirements for crew disembarkations were published in May, 2020, (if not in the April, 2020, update), and yet to get "green" status, the only thing the cruise lines had to do was submit a plan to meet the requirements, and to submit the health reports on a weekly basis.  Yet, the vast majority of ships waited until the CSO was issued in Oct, 2020, to start obtaining "green" status.  This was "phase 1", of the CSO framework.  Phase "2a", the port/service agreements instructions were issued 6 weeks ago (though the requirement to have such agreements was published back in April, 2020), and there has been no action on this to date.

[harkinmr]

1 minute ago, KennyFla said:

So you are admitting the CSO was retaliation for being overruled last October.   We finally agree on something.

Not retaliation. Just a sound message from Dr. Redfield to both the White House and the cruise lines that a virtual no sail would continue for public health reasons.  The good doctor had been pressured far too often by the White House as it was.  The Administration should not have gotten involved. 

[KennyFla]

3 minutes ago, chengkp75 said:

The requirements for crew disembarkations were published in May, 2020, (if not in the April, 2020, update), and yet to get "green" status, the only thing the cruise lines had to do was submit a plan to meet the requirements, and to submit the health reports on a weekly basis.  Yet, the vast majority of ships waited until the CSO was issued in Oct, 2020, to start obtaining "green" status.  This was "phase 1", of the CSO framework.  Phase "2a", the port/service agreements instructions were issued 6 weeks ago (though the requirement to have such agreements was published back in April, 2020), and there has been no action on this to date.

The point was made that the cruise industry "did not work with the CDC until very recently.  They were waiting around for the CSO to be done away with."

 

In fact, they have been working on the CSO, as much as was released, until they got to the point where it was not doable.

 

Hence the State of Florida lawsuit.

Edited May 12, 2021 by KennyFla

[chengkp75]

3 minutes ago, KennyFla said:

So you are admitting the CSO was retaliation for being overruled last October.   We finally agree on something.

Actually, the September extension of the NSO, that VP Pence "overruled" by changing it from 6 months to one month, was exactly what the CDC wanted.  This gave them the time required after the "request for information" period, required under the APA to make the interim requirements permanent, and then when the one month extension expired, they replaced the NSO with the CSO, which had the exact same requirements, but without the onus of being a total ban on sailing.  

[KennyFla]

2 minutes ago, harkinmr said:

Not retaliation. Just a sound message from Dr. Redfield to both the White House and the cruise lines that a virtual no sail would continue for public health reasons.  The good doctor had been pressured far too often by the White House as it was.  The Administration should not have gotten involved. 

Yes.  Everything the CDC does is for the good of mankind, everything the other side does is evil.

[DCGuy64]

13 minutes ago, ace2542 said:

But cruise ships are superspreaders for this kind of thing to be fair. More so than any other type of holiday. You can't deny that.

WRONG, as usual.

[chengkp75]

1 minute ago, KennyFla said:

The point was made that the cruise industry "did not work with the CDC until very recently.  They were waiting around for the CSO to be done away with."

 

In fact, they have been working on the CSO, as much as was released, until they got to the point where it was not doable.

 

Hence the State of Florida lawsuit.

You still seem to believe that it is the regulatory agency's responsibility to define an action plan for a regulated industry.  There was nothing to preclude the cruise industry from presenting plans back a year ago, when the requirements were first set forth, and not wait for "technical instructions".  Those instructions are used only when industry does not respond to the published requirements with action plans.  So, they must have given up on the CSO (and the NSO, since it is basically the same), back in April, 2020, as unworkable, since they provided almost nothing other than what was needed to avoid additional expense for them over crew movements.

[harkinmr]

11 minutes ago, KennyFla said:

The point was made that the cruise industry "did not work with the CDC until very recently.  They were waiting around for the CSO to be done away with."

 

In fact, they have been working on the CSO, as much as was released, until they got to the point where it was not doable.

No. The measures and requirements in the CSO were known in late October.  At that time the order was lauded as a path forward by the cruise lines and the cruise media. If it was so unworkable they sure did not say so at the time. And now, all of a sudden, it is. They were waiting out the pandemic. Pure and simple. And notice now that the lines are working through the “unworkable”. Interesting. 

Edited May 12, 2021 by harkinmr

[DCGuy64]

1 minute ago, KennyFla said:

Yes.  Everything the CDC does is for the good of mankind, everything the other side does is evil.

That's the view of many on here, unfortunately. What they don't acknowledge is that an overly cautious attitude (especially when not supported by scientific evidence) is very costly, just as an overly lax attitude is. The unspoken assumption of the "let's err on the side of caution" argument is that there's no harm in doing that, but there is. I don't think we'll fully know just how costly the reaction to Covid has been on our society for years to come.

[DCGuy64]

Everybody ought to read this article, it confirms many of my suspicions about whether the CDC's very cautious recommendations were accurate or not.

 

https://www.statnews.com/2021/05/11/cdc-messaging-covid-19-seems-out-of-step-public-health-experts-say/

 

 

[harkinmr]

7 minutes ago, KennyFla said:

Yes.  Everything the CDC does is for the good of mankind, everything the other side does is evil.

Honestly, the only cries of “evil” I’ve seen have been against the CDC. 

[KennyFla]

2 minutes ago, chengkp75 said:

You still seem to believe that it is the regulatory agency's responsibility to define an action plan for a regulated industry.  

No, that is exactly what I do not believe.  The CDC should caution and support and advise

the cruise industry to prevent another debacle like last March.  

 

For the 100th time, MSC has been cruising safely since August, showing how and that it can be done.

 

The CDC should not be micro-managing the cruise industry out of the US.  They don't do it with anybody else.

[DCGuy64]

1 minute ago, KennyFla said:

For the 100th time, MSC has been cruising safely since August, showing how and that it can be done.

It's seriously gotten to the point where I feel genuine pity for people who are so stuck in the past that their knee-jerk reaction to sailing again is "b-b-but, the Diamond Princess, superspreader, oh the humanity!" They're stuck in the mindset of March 2020, that's just sad. I hope that one by-product of this case, even if the judge ultimately rules against Florida et al., is to show how woefully out of touch the CDC is in its reliance on old and outdated views of the cruise industry. I hope it embarrasses them into changing their hostile attitude. The industry has made great strides over the last year, and the LACK of any massive outbreak is proof positive of that.

 

[Navis]

I hope people are not losing sight of what is actually before the court today. This judge will not be hearing the merits of the case, but only a motion for preliminary injunctive relief, an exceedingly rare form of relief with a very high bar to achieve (in part because it restricts a defendant from acting absent an actual judgement). In my year as a clerk on the US Court of Appeals we heard appeals from prelim injunction denials about 50 times .. none of those District Court decisions were overruled (for certain that is also in part because of the standard of review on appeal).

 

In this case, the one place I disagree with the author is on the standing issue. I think, for these purposes, the judge might assume standing. Although were I his clerk I would strongly advise him against assuming standing on the basis of federal jurisdiction itself. Standing is the bedrock foundation from which the judiciary derives its authority. Without it, the court is powerless and cannot act. However, on a motion for a PI, a judge MAY assume it for now given the litigant here is a sovereign state itself ... so it would be the prudential thing to do.

 

After that, however, I think the author is spot on. There are 4 prongs to the grant of a PI. Focusing on the 2 main prongs, the likelihood of success on the merits and the likelihood of irreparable harm, I just don’t see anything in FL’s filings that get them there. The CDC’s filing cites the law that provides the CDC with the power to act and also provides the factual basis for why the action was taken. A Federal Judge will be loathe to second guess the actions of a coordinate branch of government. A court acts when it sees a LACK of power to act or an abuse in doing so (APA), but NOT when it is being asked to substitute its own judgment for that of members of the executive branch. 
 

Also, regarding irreparable harm, FL’s case is not very strong. That is probably why they attempt to puff up their filing with harm caused to others (the cruise lines) rather than limiting to just the state’s own harm, but the judge will see right through that. The CDC’s focus on the immateriality of the lost revenue is slightly misguided (as materiality is not wholly consistent with the concept of irreparability), but could be persuasive.

 

In short, FL’s case on the merits is exceedingly thin so the author is right that that is likely a death blow to the PI motion.   

Edited May 12, 2021 by Navis

[harkinmr]

10 minutes ago, Navis said:

I hope people are not losing sight of what is actually before the court today. This judge will not be hearing the merits of the case, but only a motion for preliminary injunctive relief, an exceedingly rare form of relief with a very high bar to achieve (in part because it restricts a defendant from acting absent an actual judgement). In my year as a clerk on the US Court of Appeals we heard appeals from prelim injunction denials about 50 times .. none of those District Court decisions were overruled (for certain that is also in part because of the standard of review on appeal).

 

In this case, the one place I disagree with the author is on the standing issue. I think, for these purposes, the judge might assume standing. Although were I his clerk I would strongly advise him against assuming standing on the basis of federal jurisdiction itself. Standing is the bedrock foundation from which the judiciary derives its authority. Without it, the court is powerless and cannot act. However, on a motion for a PI, a judge MAY assume it for now given the litigant here is a sovereign state itself ... so it would be the prudential thing to do.

 

After that, however, I think the author is spot on. There are 4 prongs to the grant of a PI. Focusing on the 2 main prongs, the likelihood of success on the merits and the likelihood of irreparable harm, I just don’t see anything in FL’s filings that get them there. The CDC’s filing cites the law that provides the CDC with the power to act and also provides the factual basis for why the action was taken. A Federal Judge will be loathe to second guess the actions of a coordinate branch of government. A court acts when it sees a LACK of power to act or an abuse in doing so (APA), but NOT when it is being asked to substitute its own judgment for that of members of the executive branch. 
 

Also, regarding irreparable harm, FL’s case is not very strong. That is probably why they attempt to puff up their filing with harm caused to others (the cruise lines) rather than limiting to just the state’s own harm, but the judge will see right through that. The CDC’s focus on the immateriality of the lost revenue is slightly misguided (as materiality is not wholly consistent with the concept of irreparability), but could be persuasive.

 

In short, FL’s case in the merits is exceedingly thin so the author is right that that is likely a death blow to the PI motion.   

Thank you.  A very enlightening analysis. 

[DCGuy64]

22 minutes ago, Navis said:

I hope people are not losing sight of what is actually before the court today. This judge will not be hearing the merits of the case, but only a motion for preliminary injunctive relief, an exceedingly rare form of relief with a very high bar to achieve (in part because it restricts a defendant from acting absent an actual judgement). In my year as a clerk on the US Court of Appeals we heard appeals from prelim injunction denials about 50 times .. none of those District Court decisions were overruled (for certain that is also in part because of the standard of review on appeal).

 

In this case, the one place I disagree with the author is on the standing issue. I think, for these purposes, the judge might assume standing. Although were I his clerk I would strongly advise him against assuming standing on the basis of federal jurisdiction itself. Standing is the bedrock foundation from which the judiciary derives its authority. Without it, the court is powerless and cannot act. However, on a motion for a PI, a judge MAY assume it for now given the litigant here is a sovereign state itself ... so it would be the prudential thing to do.

 

After that, however, I think the author is spot on. There are 4 prongs to the grant of a PI. Focusing on the 2 main prongs, the likelihood of success on the merits and the likelihood of irreparable harm, I just don’t see anything in FL’s filings that get them there. The CDC’s filing cites the law that provides the CDC with the power to act and also provides the factual basis for why the action was taken. A Federal Judge will be loathe to second guess the actions of a coordinate branch of government. A court acts when it sees a LACK of power to act or an abuse in doing so (APA), but NOT when it is being asked to substitute its own judgment for that of members of the executive branch. 
 

Also, regarding irreparable harm, FL’s case is not very strong. That is probably why they attempt to puff up their filing with harm caused to others (the cruise lines) rather than limiting to just the state’s own harm, but the judge will see right through that. The CDC’s focus on the immateriality of the lost revenue is slightly misguided (as materiality is not wholly consistent with the concept of irreparability), but could be persuasive.

 

In short, FL’s case on the merits is exceedingly thin so the author is right that that is likely a death blow to the PI motion.   

All of that is a given, but MY point (and it's only mine) is that the facts in the case (even if not relevant to the outcome of the hearing) will be brought to light in such a way as to demonstrate the CDC's attitude toward the cruise industry. I read the full text of Florida's motion and it's pretty damning to the CDC. Maybe the judge will toss it out, but hopefully not before those watching the case find out just how much foot-dragging the CDC has done over the past year.

[chengkp75]

42 minutes ago, KennyFla said:

No, that is exactly what I do not believe.  The CDC should caution and support and advise

the cruise industry to prevent another debacle like last March.  

 

For the 100th time, MSC has been cruising safely since August, showing how and that it can be done.

 

The CDC should not be micro-managing the cruise industry out of the US.  They don't do it with anybody else.

And, yet, when the CDC did not "micro-manage" the cruise industry, they never came forward with an action plan to resume cruising.  Please don't mention the Healthy Sail Panel report, since this itself mentions that cruise lines would need to implement plans to meet their requirements.  These plans have never come to light.

[DCGuy64]

Just now, chengkp75 said:

And, yet, when the CDC did not "micro-manage" the cruise industry, they never came forward with an action plan to resume cruising.  Please don't mention the Healthy Sail Panel report, since this itself mentions that cruise lines would need to implement plans to meet their requirements.  These plans have never come to light.

Seriously? Oh good grief.

[chengkp75]

2 minutes ago, DCGuy64 said:

Seriously? Oh good grief.

Okay, point me to their action plans.  The Healthy Sail Panel report tells what they would recommend the cruise lines to do, it does not say how this is going to be accomplished.  The devil is in the details, and the how is always far harder to spell out than the what.  As an example, the cruise lines say they will mandate vaccinations (that's the what).  Where have they said, how they are going to determine vaccination status, what level of proof, and what enforcement measures will be in place.