Interesting Quotes from Injunction Ruling

[At Sea At Peace]

Some of my favorite quotes ~

 

Here, Congress has not expressly ratified CDC’s “interpretation of its own

authority” to issue a COVID-19 conditional sailing order. (Doc. 72 at 4) Rather, the

Alaska Tourism Restoration Act identifies the category or class of ships exempt

temporarily from the Passenger Vessel Services Act. Identifying the class of ships to

which a statute grants a benefit is far different from — and much less than —

expressly ratifying an agency’s authority to issue a certificate, the holders of which

constitute the affected category or class. If Congress intended to ratify an

interpretation of Section 264 that authorizes CDC to impose the restrictions

governing a COVID-19 conditional sailing certificate, Congress “would have

explicitly so declared.”

 

For these reasons and for many of the reasons stated by Florida, the Alaska

Tourism Restoration Act falls short of ratifying CDC’s interpretation of Section 264(a).

 

In sum, defining “transmission” as a single human-to-human infection, CDC

claims authority to impose nationwide any measure, unrestrained by the second

sentence of Section 264(a), to reduce to “zero” the risk of transmission of a

disease — all based only on the director’s discretionary finding of “necessity.” That

is a breathtaking, unprecedented, and acutely and singularly authoritarian claim.

 

CDC claims a remarkable and generally unbounded power of the director of

CDC to act athwart the president; to close industries; to restrict the movement of

citizens in an out of their country, their state, their county, and city, and their home.

And recent history demonstrates that the power of the director of CDC, unless and

until corrected by the judiciary, can oust the ability of a state to exercise the police

power — all without formal notice and comment from the public and continuing

from year-to-year.

 

In a letter to Nathaniel Macon on October 20, 1821, Thomas Jefferson wrote:

 

Our government is now taking so steady a course as to show by what

road it will pass to destruction, to wit, by consolidation first; and then

corruption, it’s necessary consequence. The engine of consolidation

will be the Federal judiciary; the two other branches the corrupting

and corrupted instruments.

 

Jefferson is not yet proven wrong.

 

In a word, the conditional sailing order’s global and peremptory dismissal of

state and local health measures is arbitrary and capricious.

 

To recapitulate, although several of Florida’s arguments remain unpersuasive

on this record, the conditional sailing order is arbitrary and capricious because the

order imposes vague and shifting (but binding) legal requirements and because the

order fails to offer any reasoned explanation about the inadequacy of local measures.

 

Florida establishes an imminent, actual, and irreparable injury.

 

Even New York has “re-opened.”

 

CDC responds by arguing that cruise ships “present a unique setting that is

particularly conducive to transmission of the virus.” (Doc. 31-1 at 33) In light of the

proliferation of vaccines, CDC’s own data weakens this conclusion. CDC reports

that “if passengers originate from a community with a medium prevalence of

COVID-19 and 50% of those passengers are fully vaccinated . . . modeling data

estimates that the passengers’ risk of introducing COVID-19 onto the ship has only

been reduced by 62.8%.” (Doc. 31-1 at 28) But the presence of COVID-19 in the

community decreases daily, and vaccinations continue to rise. A passenger’s risk of

introducing COVID-19 onto a ship decreases as COVID-19 abates. CDC relies on

in-house “modeling data,” which is unpublished, unrefereed, and undisclosed by

CDC and which reportedly offer only conclusory, modeling-based comparisons to

other “densely populated” living configurations, which currently thrive without the

same restrictions imposed on cruises. (One supposes that if this data were

convincing, CDC in recent months might have revealed the study, the model, the

results, the methodology, and the researchers.)

 

With the advent of highly effective vaccines, with more than half of

adults fully vaccinated, with infection plummeting, with death from COVID-19

asymptotically approaching zero; with the benefit of effective therapeutics for

COVID-19; with masks, safe distancing, and sanitation; and with the successful

and safe re-opening of business, including airlines, sporting events, and other high

capacity venues, COVID-19 no longer threatens the public’s health to the same

extent presented at the start of the pandemic or when CDC issued the conditional

sailing order. In fact, CDC’s conditional sailing order relies on stale data obtained to

justify the no-sail orders when the danger posed by COVID-19 was qualitatively and

quantitatively different from today.

[CI66774]

Thanks for posting.

[Jimbo]

1 hour ago, At Sea At Peace said:

Some of my favorite quotes ~

 

Here, Congress has not expressly ratified CDC’s “interpretation of its own

authority” to issue a COVID-19 conditional sailing order. (Doc. 72 at 4) Rather, the

Alaska Tourism Restoration Act identifies the category or class of ships exempt

temporarily from the Passenger Vessel Services Act. Identifying the class of ships to

which a statute grants a benefit is far different from — and much less than —

expressly ratifying an agency’s authority to issue a certificate, the holders of which

constitute the affected category or class. If Congress intended to ratify an

interpretation of Section 264 that authorizes CDC to impose the restrictions

governing a COVID-19 conditional sailing certificate, Congress “would have

explicitly so declared.”

 

For these reasons and for many of the reasons stated by Florida, the Alaska

Tourism Restoration Act falls short of ratifying CDC’s interpretation of Section 264(a).

 

In sum, defining “transmission” as a single human-to-human infection, CDC

claims authority to impose nationwide any measure, unrestrained by the second

sentence of Section 264(a), to reduce to “zero” the risk of transmission of a

disease — all based only on the director’s discretionary finding of “necessity.” That

is a breathtaking, unprecedented, and acutely and singularly authoritarian claim.

 

CDC claims a remarkable and generally unbounded power of the director of

CDC to act athwart the president; to close industries; to restrict the movement of

citizens in an out of their country, their state, their county, and city, and their home.

And recent history demonstrates that the power of the director of CDC, unless and

until corrected by the judiciary, can oust the ability of a state to exercise the police

power — all without formal notice and comment from the public and continuing

from year-to-year.

 

In a letter to Nathaniel Macon on October 20, 1821, Thomas Jefferson wrote:

 

Our government is now taking so steady a course as to show by what

road it will pass to destruction, to wit, by consolidation first; and then

corruption, it’s necessary consequence. The engine of consolidation

will be the Federal judiciary; the two other branches the corrupting

and corrupted instruments.

 

Jefferson is not yet proven wrong.

 

In a word, the conditional sailing order’s global and peremptory dismissal of

state and local health measures is arbitrary and capricious.

 

To recapitulate, although several of Florida’s arguments remain unpersuasive

on this record, the conditional sailing order is arbitrary and capricious because the

order imposes vague and shifting (but binding) legal requirements and because the

order fails to offer any reasoned explanation about the inadequacy of local measures.

 

Florida establishes an imminent, actual, and irreparable injury.

 

Even New York has “re-opened.”

 

CDC responds by arguing that cruise ships “present a unique setting that is

particularly conducive to transmission of the virus.” (Doc. 31-1 at 33) In light of the

proliferation of vaccines, CDC’s own data weakens this conclusion. CDC reports

that “if passengers originate from a community with a medium prevalence of

COVID-19 and 50% of those passengers are fully vaccinated . . . modeling data

estimates that the passengers’ risk of introducing COVID-19 onto the ship has only

been reduced by 62.8%.” (Doc. 31-1 at 28) But the presence of COVID-19 in the

community decreases daily, and vaccinations continue to rise. A passenger’s risk of

introducing COVID-19 onto a ship decreases as COVID-19 abates. CDC relies on

in-house “modeling data,” which is unpublished, unrefereed, and undisclosed by

CDC and which reportedly offer only conclusory, modeling-based comparisons to

other “densely populated” living configurations, which currently thrive without the

same restrictions imposed on cruises. (One supposes that if this data were

convincing, CDC in recent months might have revealed the study, the model, the

results, the methodology, and the researchers.)

 

With the advent of highly effective vaccines, with more than half of

adults fully vaccinated, with infection plummeting, with death from COVID-19

asymptotically approaching zero; with the benefit of effective therapeutics for

COVID-19; with masks, safe distancing, and sanitation; and with the successful

and safe re-opening of business, including airlines, sporting events, and other high

capacity venues, COVID-19 no longer threatens the public’s health to the same

extent presented at the start of the pandemic or when CDC issued the conditional

sailing order. In fact, CDC’s conditional sailing order relies on stale data obtained to

justify the no-sail orders when the danger posed by COVID-19 was qualitatively and

quantitatively different from today.

I got distracted with all the colors you used to type this out. Stopped reading after 2nd color.

[mauraoel]

12 minutes ago, Jimbo said:

I got distracted with all the colors you used to type this out. Stopped reading after 2nd color.

Actually I thought it separated the judges arguments quite nicely. 

[kearney]

1 hour ago, mauraoel said:

Actually I thought it separated the judges arguments quite nicely. 

Agree... not sure how better to do so... 

[cscurlock]

Well I guess they will have to add language to expressly ratify the CDC CSO when they pass a new ATRA bill now that the old one is dead.  Then this ruling can just go away or the Alaska season can go away.  

[smokeybandit]

11 minutes ago, cscurlock said:

Well I guess they will have to add language to expressly ratify the CDC CSO when they pass a new ATRA bill now that the old one is dead.  Then this ruling can just go away or the Alaska season can go away.  

Alaska cruises are in no danger

[time4u2go]

3 hours ago, Jimbo said:

I got distracted with all the colors you used to type this out. Stopped reading after 2nd color.

Lol same here! 

[Jimbo]

31 minutes ago, smokeybandit said:

Alaska cruises are in no danger

at 2:00pm eastern time on June 19th 2021.....after that it's anyone's guess.....

[RedIguana]

2 hours ago, cscurlock said:

Well I guess they will have to add language to expressly ratify the CDC CSO when they pass a new ATRA bill now that the old one is dead.  Then this ruling can just go away or the Alaska season can go away.  

The way the judge vacated the CSO should not affect Alaska sailings or the ATRA.  The CSO will still allow the CDC to issue conditional sailing certificates. The vacate order does not abolish the CSO, it just makes it "advisory", so it is still there. The order just makes it so no one has to follow the CSO when vacated. Now if the CDC decides to terminate the CSO since it becomes only advisory, that is when the ATRA may become questionable.

[smokeybandit]

People are reading too deep into ATRA. No matter what happens with the CSO (which of course isn't mentioned at all in ATRA), it won't affect Alaska cruises.

[Goodtime Cruizin]

This is so great. I love it. 

[craig01020]

I fell asleep...

[CRUISEFAN0001]

20 hours ago, Jimbo said:

at 2:00pm eastern time on June 19th 2021.....after that it's anyone's guess.....

...or a dozen appeals in the meantime...the plot thickens...

[Jimbo]

18 hours ago, Goodtime Cruizin said:

This is so great. I love it. 

It will change again before it means anything.

[Daniel A]

On 6/19/2021 at 3:01 PM, RedIguana said:

The way the judge vacated the CSO should not affect Alaska sailings or the ATRA.  The CSO will still allow the CDC to issue conditional sailing certificates. The vacate order does not abolish the CSO, it just makes it "advisory", so it is still there. The order just makes it so no one has to follow the CSO when vacated. Now if the CDC decides to terminate the CSO since it becomes only advisory, that is when the ATRA may become questionable.

I agree with your analysis.  Further, ATRA may also be be interpreted to mean CDC has a responsibility to issue conditional sailing certificates and thus cannot arbitrarily 'pick up their toys and go home...'  CDC does not need a mandatory CSO in order to issue conditional sailing certificates on a voluntary basis.

 

Additionally to your first sentence, the judge was very narrowly specific that his order only affects ships sailing into, within, or from Florida.

[pawmtweez]

Does anyone have a link to the ruling?

[Daniel A]

8 minutes ago, pawmtweez said:

Does anyone have a link to the ruling?

Order+on+PI.pdf (myfloridalegal.com)

 

 

[pawmtweez]

Thank you!

[Daniel A]

July 2, was the drop dead date for CDC to make a counter proposal to the injunction.  Did they do it?

[Mikew0805]

3 hours ago, Daniel A said:

July 2, was the drop dead date for CDC to make a counter proposal to the injunction.  Did they do it?

I thought it was extended... no?

[harkinmr]

15 minutes ago, Mikew0805 said:

I thought it was extended... no?

It was. I saw a reference in Seatrade, but there was no link to the court document. Extension of time to reply was through July 22. A little confusing, but the reasons given for the CDC request and extension included consideration of a more narrow sailing restriction, as well as a determination on an appeal of the original preliminary injunction.  The case remains in mediation in the interim. I suspect that an appeal is likely to happen on or before the 18th. 

Edited July 3, 2021 by harkinmr

[mauraoel]

9 hours ago, Mikew0805 said:

I thought it was extended... no?

No only the actual lawsuit was extended,  the injuction takes affect on the 18th unless they submitted a narrower contract by yesterday.

[Daniel A]

11 hours ago, Mikew0805 said:

I thought it was extended... no?

 

11 hours ago, harkinmr said:

It was. I saw a reference in Seatrade, but there was no link to the court document. Extension of time to reply was through July 22. A little confusing, but the reasons given for the CDC request and extension included consideration of a more narrow sailing restriction, as well as a determination on an appeal of the original preliminary injunction.  The case remains in mediation in the interim. I suspect that an appeal is likely to happen on or before the 18th. 

 

2 hours ago, mauraoel said:

No only the actual lawsuit was extended,  the injuction takes affect on the 18th unless they submitted a narrower contract by yesterday.

This is from the June 28th article in Seatrade:  

 

"A US judge gave the Centers for Disease Control and Prevention through July 22 to respond to Florida's challenge of the cruise shutdown.

 

This is related to the underlying lawsuit; the July 2 deadline for responding to the preliminary injunction still stands.

 

The CDC had requested an approximately 30-day extension to address the original complaint, until Aug. 2, but Florida did not agree, proposing a two-week extension instead. So US District Judge Steven Merryday made a compromise."

 

Judge grants CDC more time to respond to Florida's cruise lawsuit (seatrade-cruise.com)

 

[harkinmr]

13 minutes ago, Daniel A said:

 

 

This is from the June 28th article in Seatrade:  

 

"A US judge gave the Centers for Disease Control and Prevention through July 22 to respond to Florida's challenge of the cruise shutdown.

 

This is related to the underlying lawsuit; the July 2 deadline for responding to the preliminary injunction still stands.

 

The CDC had requested an approximately 30-day extension to address the original complaint, until Aug. 2, but Florida did not agree, proposing a two-week extension instead. So US District Judge Steven Merryday made a compromise."

 

Judge grants CDC more time to respond to Florida's cruise lawsuit (seatrade-cruise.com)

 

It would have been helpful if Seatrade included a link to the extension order. They did include links to earlier orders. So all we have to go on is their interpretation. The reason for my confusion is this quote:

“Why CDC asked for more time

In its request for more time, CDC said it was still reviewing the order, including consideration of whether to seek a narrower injunction, appellate review or other relief 'as well as any other options that may be available.' And the CDC's attorneys noted they must also address the demands of additional mediation.”

 

So, I am unclear as to where the July 2nd deadline stands. I do not believe that the CDC or the mediation judge would just ignore that deadline. I guess we will see once next week comes.  

 

Edited July 3, 2021 by harkinmr