Rare At Sea At Peace Posted June 19, 2021 #1 Share Posted June 19, 2021 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. 7 1 Link to comment Share on other sites More sharing options...
CI66774 Posted June 19, 2021 #2 Share Posted June 19, 2021 Thanks for posting. Link to comment Share on other sites More sharing options...
Jimbo Posted June 19, 2021 #3 Share Posted June 19, 2021 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. 7 1 1 Link to comment Share on other sites More sharing options...
mauraoel Posted June 19, 2021 #4 Share Posted June 19, 2021 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. 22 Link to comment Share on other sites More sharing options...
kearney Posted June 19, 2021 #5 Share Posted June 19, 2021 1 hour ago, mauraoel said: Actually I thought it separated the judges arguments quite nicely. Agree... not sure how better to do so... 4 Link to comment Share on other sites More sharing options...
cscurlock Posted June 19, 2021 #6 Share Posted June 19, 2021 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. 1 Link to comment Share on other sites More sharing options...
smokeybandit Posted June 19, 2021 #7 Share Posted June 19, 2021 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 2 Link to comment Share on other sites More sharing options...
time4u2go Posted June 19, 2021 #8 Share Posted June 19, 2021 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! Link to comment Share on other sites More sharing options...
Jimbo Posted June 19, 2021 #9 Share Posted June 19, 2021 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..... Link to comment Share on other sites More sharing options...
RedIguana Posted June 19, 2021 #10 Share Posted June 19, 2021 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. Link to comment Share on other sites More sharing options...
smokeybandit Posted June 19, 2021 #11 Share Posted June 19, 2021 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. 1 1 Link to comment Share on other sites More sharing options...
Goodtime Cruizin Posted June 19, 2021 #12 Share Posted June 19, 2021 This is so great. I love it. 3 Link to comment Share on other sites More sharing options...
Rare craig01020 Posted June 20, 2021 #13 Share Posted June 20, 2021 I fell asleep... Link to comment Share on other sites More sharing options...
CRUISEFAN0001 Posted June 20, 2021 #14 Share Posted June 20, 2021 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... 1 Link to comment Share on other sites More sharing options...
Jimbo Posted June 20, 2021 #15 Share Posted June 20, 2021 18 hours ago, Goodtime Cruizin said: This is so great. I love it. It will change again before it means anything. 1 Link to comment Share on other sites More sharing options...
Daniel A Posted June 22, 2021 #16 Share Posted June 22, 2021 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. Link to comment Share on other sites More sharing options...
pawmtweez Posted June 26, 2021 #17 Share Posted June 26, 2021 Does anyone have a link to the ruling? Link to comment Share on other sites More sharing options...
Daniel A Posted June 26, 2021 #18 Share Posted June 26, 2021 8 minutes ago, pawmtweez said: Does anyone have a link to the ruling? Order+on+PI.pdf (myfloridalegal.com) Link to comment Share on other sites More sharing options...
pawmtweez Posted June 27, 2021 #19 Share Posted June 27, 2021 Thank you! 1 Link to comment Share on other sites More sharing options...
Daniel A Posted July 2, 2021 #20 Share Posted July 2, 2021 July 2, was the drop dead date for CDC to make a counter proposal to the injunction. Did they do it? Link to comment Share on other sites More sharing options...
Mikew0805 Posted July 3, 2021 #21 Share Posted July 3, 2021 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? Link to comment Share on other sites More sharing options...
harkinmr Posted July 3, 2021 #22 Share Posted July 3, 2021 (edited) 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 Link to comment Share on other sites More sharing options...
mauraoel Posted July 3, 2021 #23 Share Posted July 3, 2021 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. Link to comment Share on other sites More sharing options...
Daniel A Posted July 3, 2021 #24 Share Posted July 3, 2021 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) 2 Link to comment Share on other sites More sharing options...
harkinmr Posted July 3, 2021 #25 Share Posted July 3, 2021 (edited) 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 1 Link to comment Share on other sites More sharing options...
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