US District Judge Steven Merryday found the CDC did not justify its actions for placing extraordinary restrictions on cruise operations and the agency's disparate treatment of cruise ships relative to other industries.
Changed circumstances, stale data and evidence of economic injury
'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 reopening 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,' Merryday wrote. '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.
'Conversely,' he said, 'Florida’s injury and the injury to Florida’s economy grows by the day.'
'Cruises now safely sail all over the world with protocols designed to minimize the spread'
The judge stated: 'Cruises now safely sail all over the world with protocols designed to minimize the spread of COVID-19. Since July 2020, more than 400,000 people have sailed on cruises abroad. In Europe, thousands sail on cruises without debilitating infections of COVID-19. Although citing examples of localized infection (or, at least, “positive” test results) among persons on cruise ships abroad, CDC fails to persuasively show that the infections are not successfully confined or that the infections otherwise endanger a broadly vaccinated group of passengers and the public.'
He added: 'The availability of vaccines and testing and the comparatively trivial incidence of infection on foreign cruises — all quickly identified and confined — commends optimism about the safe operation of sailing in the United States, which enjoys high rates of vaccination and greatly enhanced, on-board containment mechanisms.'
Scope of CDC's authority questioned
In his 124-page ruling, the judge also questioned the constitutionality of the scope of authority delegated to the CDC by Congress.
Merryday did not buy the CDC's contention that the agency has the theoretical authority to reduce to 'zero' the risk of transmission of a disease, based only on the director’s discretionary finding of 'necessity.'
Banning sex to reduce risk of sexually transmitted disease?
'One is left to wonder, given the persistent risk of transmission of a communicable disease and, in fact, the frequent, debilitating and sometimes deadly history of transmission of a communicable disease, whether the director of CDC could have — or, perhaps, should have — generally shut down sexual intercourse in the United States or, at the very least, imposed in accord with Section 264(a) strict requirements for inspection, disinfection, sanitation and “other measures, as in his judgment may be necessary” to reduce to “zero,” for example, the human-to-human transmission of AIDS or syphilis or herpes,' the judge stated.
Stay until July 18
Merryday said the CDC's regulations under the conditional sailing order can remain in place only until July 18 when they'll become a non-binding 'consideration,' 'recommendation' or 'guideline,' the same tools used by CDC when addressing the practices in other similarly situated industries, such as airlines, railroads, hotels, casinos, sports venues, buses, subways and others.
The judge gave the agency until July 2 to propose more limited cruise regulations to the court and if the CDC does so, Florida will get seven days to respond and a hearing will immediately occur.
Merryday also said that if circumstances materially change at any time, either party can request an immediate hearing.
The parties were ordered to return to mediation before Magistrate Judge Anthony Porcelli.
'Victory for hardworking Floridians'
'Today’s ruling is a victory for the hardworking Floridians whose livelihoods depend on the cruise industry,' Florida Attorney General Ashley Moody said in a statement. 'The federal government does not, nor should it ever, have the authority to single out and lock down an entire industry indefinitely. I am excited to see the cruise industry get sailing again, and proud to stand with Governor Ron DeSantis against illegal federal overreach and draconian lockdown measures.'
'The CDC has been wrong all along, and they knew it,' DeSantis said, adding: 'The CDC and the Biden administration concocted a plan to sink the cruise industry, hiding behind bureaucratic delay and lawsuits. Today, we are securing this victory for Florida families, for the cruise industry and for every state that wants to preserve its rights in the face of unprecedented federal overreach.'
Underlying case continues
'Obviously the judge spent considerable time reviewing the legal issues and the practical implications. Although the underlying case will continue, the judge's decision on a preliminary injunction indicates he is likely to eventually find in favor of the state of Florida,' Robert Kritzman, a partner at Lewis Brisbois, told Seatrade Cruise News. 'To obtain a preliminary injunction means the court determined that the state of Florida has a high likelihood of success in the eventual outome.
'We all hope that circumstances will render the case moot very soon,' Kritzman added.
The full ruling is here.