DeSantis wins legal battle over COVID protocols on cruise ships, but storm clouds on the horizon

By: - July 28, 2021 7:00 am

Carnival Vista is part of Carnival Cruise Line. Credit: Wikipedia.

Gov. Ron DeSantis is prevailing in his legal battle with federal public health authorities over whether to require cruise ship passengers and crew to be vaccinated against COVID-19 to board and sail.

The governor won a federal trial court ruling about the topic, only to have the U.S. Court of Appeals for the 11th Circuit side with the U.S. Department of Health and Human Services, parent agent to the U.S. Centers for Disease Control and Prevention, which had drafted orders governing vaccinations and other safety practices.

Then, on Friday evening, came a stunning development: A three-judge 11th Circuit panel abruptly changed its mind. Without explanation, the panel withdrew its earlier order and accepted the trial judge’s injunction preventing the feds from enforcing CDC’s rules.

DeSantis aides quickly issued a press release celebrating the failure of “the CDC’s unlawful and discriminatory rules,” which “effectively mothballed the industry for more than a year,” the governor said.

“The importance of this case extends beyond the cruise industry,” DeSantis said in a written statement. “From here on out a federal bureau will be on thin legal and constitutional ice if and when it attempts to exercise such sweeping authority that is not explicitly delineated by law.”

Storm clouds remain on the horizon, however.

New York’s Excelsior Pass provides a free, fast and secure way to present digital proof of COVID-19 vaccination or negative test results. Credit: New York government website.

Another legal challenge, filed by Norwegian Cruise Lines Holdings challenging a state law banning “vaccine passports” — meaning documents attesting that people have been vaccinated against the coronavirus — remains pending in U.S. District Court for the Southern District of Florida.

Norwegian argued in a complaint filed on July 13 that it had planned to follow the CDC’s orders to protect its passengers and crew and denounced the state’s position as an “anomalous, misguided intrusion (that) threatens to spoil NCLH’s careful planning and force it to cancel or hobble upcoming cruises, thereby imperiling and impairing passengers’ experiences and inflicting irreparable harm of vast dimensions.”

A setback for the feds

“Just because DeSantis may be winning the federal-state issue — he could win that lawsuit all the way up to the U.S. Supreme Court. That does not answer the question in the NCL [Norwegian] lawsuit — is the state of Florida’s restrictions on us being able to do what we want in terms of controlling whether people are vaccinated to use our services, is that an appropriate use of state power?” said Bob Jarvis, a professor of constitutional and maritime law at Nova Southeastern Shepard Broad College of Law, during a telephone interview.

The 11th Circuit volte-face came after Attorney General Ashley Moody filed a pleading asking the U.S. Supreme Court to overrule the earlier panel ruling — the one allowing enforcement of the CDC order. Having gotten what it wanted from the 11th Circuit, the state withdrew its Supreme Court petition.

On Saturday, the U.S. Department of Health and Human Services sent a letter to the cruise industry acknowledging the setback. It didn’t withdraw its guidance, but the former rules were now “nonbinding recommendations for cruise ships arriving in, located within, or departing from a port in Florida,” the agency wrote.

“Under the injunction, the CDC cannot, and will not, bring enforcement actions for noncompliance … by ships covered by the injunction,” the letter said.

This is an image of the novel coronavirus that causes COVID-19. The virus is now creating mutations that are spreading in the United States and elsewhere. Credit: National Institute of Allergy and Infectious Diseases, Rocky Mountain Lab

But it added that it still required ships to report infections and deaths, submit to public health inspections and sanitation standards, and additional public-health protections.

The CDC said it would decline to vouch for the safety of ships that don’t meet those standards.

“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 agency wrote.

Judge Merryday considers sanctions

That was enough for Florida officials to ask Steven Merryday, the Tampa federal trial judge who ruled on June 18 against the CDC, to consider sanctioning the agency.

“The CDC clearly intends to skirt this court’s requirements using every available regulatory tool it possesses in the hopes of coercing the cruise industry into compliance,” Moody’s office argued in a pleading filed Saturday.

Merryday declined, following arguments on Monday, to issue sanctions, saying that as long as compliance with CDC policy remains voluntary, state officials “anticipate a violation that has not occurred and that might not occur.”

However, the judge made clear that he would act 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 … .”

As for what this means to the public and the cruise industry — and its many, many contractors in Florida — the Phoenix asked a number of lines for comment, including Carnival, which operates under its own name and controls lines such as Princess, Holland America, and Cunard. The company did not reply. Neither did the American Society of Travel Advisors, which has supported the state’s position.

A health advisory issued by Carnival does envision requiring proof of vaccination, although it doesn’t specify whether that would apply in Florida. Alternatively, the company will accept pre-voyage COVID testing plus additional tests upon embarkation and 24 hours later, at a $150 fee. As of Sunday, sailings from Florida and Texas, passengers will need to show proof of having bought travel insurance.

Norwegian Cruise Line posted a similar notice on its website, saying it planned to require vaccinations for all passengers and crew. Royal Caribbean does not plan to require vaccinations for passengers but crew members need to get the shots.

The DeSantis administration is OK with all that, as long as the cruise lines don’t demand vaccination proof.

“If passengers don’t want to show a vaccine passport or don’t have one, and they have the option to take a test instead, that’s OK. That wouldn’t be a violation of the law. That would be fine if the cruise lines want to do that,” Christine Pushaw, the governor’s press secretary, said via email.

The Elbert P. Tuttle U.S. Courthouse in Atlanta, home to the U.S. Court of Appeals for the 11th Circuit. Credit: Wikimedia Commons

Regarding the underlying litigation, thus far the 11th Circuit hasn’t explained its reasoning for the reversal — it hasn’t published an opinion, although its order references a Supreme Court ruling governing stays in immigration cases, not public health, Nova Southeastern’s Jarvis noted.

As it stands, he said, any damage from an infectious disease point of view would be limited to the territory within the 11th Circuit, meaning Alabama, Florida, and Georgia, because the Supreme Court hasn’t ruled on the matter and set a national precedent.

Federal authorities understand that both the circuit and high courts are now weighted with conservative judges. “It may be better to retreat and to live to fight another day sometime in the future when, hopefully, the politics are less intensely against us,” Jarvis said.

He worried about what the turnabout implies about the appeals court.

“This looks terrible. The optics are absolutely awful, because you expect federal courts, and particularly federal appellate courts, to know what they are doing and not look like Keystone Cops. This flip-flop, with no explanation against a backdrop of spiking COVID numbers? I mean,” he said.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.