FORT LAUDERDALE, Fla. — In a matter of days, things have changed again for the cruise industry in Florida.
Judges for the U.S. 11th Circuit Court of Appeals in Atlanta reversed course Friday, siding with the state by saying the Centers for Disease Control and Prevention cannot keep any of its COVID-19 safety measures in place as cruises sail from Florida ports this summer.
The reversal comes only six days after the 11th Circuit Court of Appeals stayed a judge’s order that would have declared the CDC’s COVID-19 regulations for the cruise ship industry as mere recommendations, not rules.
The ruling by the appeals court last week had meant U.S. Federal District Judge Steven Merryday’s June 18 decision to allow cruise ships to sail without mandatory COVID-19 precautions and policies was put on hold. The decision was considered a win for the CDC. Judges’ opinions were supposed to follow, but they never did.
Florida Gov. Ron DeSantis got his way Friday when the federal appeals court changed course. The Friday decision offered no explanation other than saying the CDC “failed to demonstrate an entitlement to a stay pending appeal.” Friday’s decision by the appeals court to side with Florida was unanimous.
The CDC wanted cruises to follow a list of measures in a four-phased approach in order to set sail again, including mass testing for staff and passengers, enforcing social distancing and conducting test trips if fewer than 95% of those onboard are fully vaccinated, among other things.
A court document Florida filed to the U.S. Supreme Court on Friday says only five ships that are set to sail from Florida out of at least 65 have been currently approved under the CDC’s protocols.
Bob Jarvis, a professor of law at Nova Southeastern University, said the decision is surprising because it comes at a time when Florida has seen a 60% increase in COVID-19 cases over the last week and because the Friday decision came from the same three judges who ruled in favor the CDC just days ago.
“I would have thought that it would have become even clearer how wrong Merryday was and how desperately the CDC’s protocols are needed,” Jarvis said, referencing the spike in COVID-19 cases. “So the 11th Circuit now is really flying in the face of science, and this is a very distressing development.”
Jarvis said he can’t recall ever seeing a court reverse course so quickly.
“It’s fairly unprecedented for a court to change its mind on the fly like this,” he said.
The CDC can continue to fight against the state, but that is even more unlikely now, Jarvis said.
“The real question is, what happened this week to make those two judges from last week change their minds?” Jarvis said. “Because that’s a very big change.”
Since DeSantis and Attorney General Ashley Moody first filed the lawsuit against the CDC in April, the courts have gone back and forth in decisions, siding with the CDC in one moment and the state in the next.
When the lawsuit was filed in April, the state said the CDC’s COVID-19 safety measures it was asking cruise ships to follow had harmed Florida’s economy and contributed to unemployment rates. The state said the CDC’s requirements were unconstitutional and that the agency was overstepping its bounds.
DeSantis and Moody made it clear that Florida wanted nothing to do with the CDC’S COVID-19 safety measures, saying that they were “overly burdensome” and “discriminate against children, leave most of the ships sitting in port and disregard the freedom of Floridians to make decisions for their families.”
Merryday, in his preliminary injunction against the CDC’s measures, sided with Florida in a 124-page decision. Merryday wrote that Florida was likely to defeat the CDC on grounds that the CDC’s cruise precautions “exceed the authority delegated” to the federal agency.
Merryday’s ruling meant that by July 18, the CDC measures were supposed to become recommendations rather than rule. Then in early July, the CDC filed to appealed Merryday’s decision and requested it be able to keep its precautions in place during the appeals process. But Merryday denied that request.
Before the circuit court judges reversed Saturday’s decision, DeSantis filed an emergency application to the U.S. Supreme Court to vacate the 11th Circuit’s decision that sided with the CDC. The state in its application to the Supreme Court pointed to Merryday’s original decision, saying that Merryday “correctly concluded” that the CDC is going beyond its authority with its cruise guidelines.
“Florida acknowledges that cruising will never be a zero-risk activity, as does the CDC,” the state’s application to the Supreme Court reads. “But the pandemic began 16 months ago. Society is reopening. Industries have learned to mitigate COVID-19 by voluntarily altering their business practices, and cruise lines should be given that same opportunity.”
