Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 1 of 21 PageID 1
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
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`
`STATE OF FLORIDA,
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`
`
`
`Plaintiff,
`
`v.
`
`
`
`
`
`
`
`
`
`
`
`Case No. 8:21-cv-839
`
`
`XAVIER BECERRA, Secretary of
`Health and Human Services, in his
`official capacity; HEALTH AND
`HUMAN SERVICES; ROCHELLE
`WALENSKY, Director of the
`Centers for Disease Control and
`Prevention, in her official capacity;
`CENTERS FOR DISEASE
`CONTROL AND PREVENTION;
`The UNITED STATES OF
`AMERICA,
`
`
`
`
`
`Defendants.
`_________________________________/
`
`
`
`
`COMPLAINT FOR DECLARATORY AND
`PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`
`STATE OF FLORIDA,
`
`
`
`
`Plaintiff,
`
`v.
`
`
`
`
`
`
`
`
`
`
`
`Case No. 8:21-cv-839
`
`
`XAVIER BECERRA, Secretary of
`Health and Human Services, in his
`official capacity; HEALTH AND
`HUMAN SERVICES; ROCHELLE
`WALENSKY, Director of the
`Centers for Disease Control and
`Prevention, in her official capacity;
`CENTERS FOR DISEASE
`CONTROL AND PREVENTION;
`The UNITED STATES OF
`AMERICA,
`
`
`
`
`
`Defendants.
`_________________________________/
`
`
`
`
`COMPLAINT FOR DECLARATORY AND
`PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 2 of 21 PageID 2
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`INTRODUCTION
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`1.
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`The COVID-19 pandemic caused massive disruption and harm
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`across the world. As of April 7, 2021, there have been 30,596,830 reported cases
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`and 554,420 deaths in the United States.1
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`2.
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`Those numbers, which are staggering and sobering, do not portray
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`the full picture. The pandemic started with great uncertainty and caused great
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`fear. But with resolve, purpose, and ingenuity, we have developed multiple
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`vaccines, therapeutics, and treatments that have reduced the mortality at
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`unparalleled speed.
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`3.
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`As of April 6, 2021, 32.6% of the U.S. population has received at
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`least one vaccine dose, while 19% is fully vaccinated.2 Importantly, 75.9% of
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`those 65-and-older have received at least one dose,3 as states like Florida have
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`prioritized the vaccination of vulnerable groups like seniors.
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`4.
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`The country is returning to normal. Florida is leading the way and
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`has remained more open than many other large states. Industries have
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`adapted to COVID-19 in Florida and are adapting elsewhere. They have found
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`ways to do business safely, and before long, most Americans will be vaccinated.
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`1 https://covid.cdc.gov/covid-data-tracker/#datatracker-home.
`2 https://covid.cdc.gov/covid-data-tracker/#vaccinations.
`3 https://covid.cdc.gov/covid-data-tracker/#vaccinations.
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`
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`2
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`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 3 of 21 PageID 3
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`5.
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`On April 6, 2021, President Biden announced that all adults will
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`be eligible to receive a vaccine by April 19, and he has set as a goal beginning
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`to return to normal by the July 4th holiday.4 Florida is ahead of President
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`Biden’s goal, both with reopening and with vaccinations. As of April 5, all
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`adults in Florida are eligible for a vaccine.
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`6.
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`Despite the virus, and those who would lock down society
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`indefinitely, people are traveling again. They are doing so safely with
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`protective measures like vaccines, sanitation, and social distancing. On April
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`5, for example, 1,561,959 individuals traveled on airplane flights in the United
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`States—almost fifteen times the number who were flying on the same day a
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`year earlier.5 It is not just air travel. Hotels, theme parks, restaurants, and
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`many other industries are safely reopening.
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`7.
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`But as these industries begin to restart and rebuild, the cruise
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`industry has been singled out, and unlike the rest of America, prevented from
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`reopening. Despite the demonstrated success of reasonable COVID-19 safety
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`protocols in Europe and Asia, the cruise industry in the United States has been
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`subject to a nationwide lockdown since March 2020. As a result, the industry
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`is on the brink of financial ruin.
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`https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/03/11/remarks-by-
`4
`president-biden-on-the-anniversary-of-the-covid-19-shutdown/.
`5 https://www.tsa.gov/coronavirus/passenger-throughput.
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`3
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`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 4 of 21 PageID 4
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`8.
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`In October 2020, the Centers for Disease Control and Prevention
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`(“CDC”) expressly found that continuing this nationwide lockdown was
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`unjustifiable. But since that time, notwithstanding its public decision to allow
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`the cruise industry to reopen, the CDC has functionally continued the
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`lockdown. And it now appears the CDC will continue that lockdown until
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`November 2021, even though vaccines are now available to all adults who want
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`them.
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`9.
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`The CDC does not have the authority to issue year-and-a-half-long
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`nationwide lockdowns of entire industries. And even if it did, its actions here
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`are arbitrary and capricious and otherwise violate the Administrative
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`Procedure Act (“APA”).
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`10. Florida asks this Court to set aside the CDC’s unlawful actions and
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`hold that cruises should be allowed to operate with reasonable safety protocols.
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`11. Absent this Court’s intervention, Florida will lose hundreds of
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`millions of dollars, if not billions. And, more importantly, the approximately
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`159,000 hard-working Floridians whose livelihoods depend on the cruise
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`industry could lose everything.
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`PARTIES
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`12. Plaintiff State of Florida is a sovereign State and has the authority
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`and responsibility to protect the wellbeing of its public fisc and the health,
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`safety, and welfare of its citizens.
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`4
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`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 5 of 21 PageID 5
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`13. Defendants are the United States, appointed officials of the United
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`States government, and United States governmental agencies responsible for
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`the issuance and implementation of the challenged administrative actions.
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`14. Florida sues Defendant the United States of America under
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`5 U.S.C. §§ 702–03 and 28 U.S.C. § 1346.
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`15. Defendant CDC issued and is implementing the October 30, 2020
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`Order, establishing its Framework for Conditional Sailing and Initial Phase
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`COVID-19 Testing Requirements for Protection of Crew (the “Conditional
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`Sailing Order”). See Ex. 1. The CDC is a component of Defendant the
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`Department of Health & Human Services (“HHS”).
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`16. Defendant Rochelle Walensky is the Director of the CDC. She is
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`sued in her official capacity.
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`17. Defendant Xavier Becerra is the Secretary of HHS. He is sued in
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`his official capacity.
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`JURISDICTION AND VENUE
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`18. The Court has subject matter
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`jurisdiction pursuant
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`to
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`28 U.S.C. §§ 1331, 1346, and 1361 and 5 U.S.C. §§ 702–03.
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`19. The Court is authorized to award the requested declaratory and
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`injunctive relief under 5 U.S.C. § 706, 28 U.S.C. § 1361, and 28 U.S.C. §§ 2201–
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`02.
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`5
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`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 6 of 21 PageID 6
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`20. Venue lies in this district pursuant to 28 U.S.C. § 1391(e)(1)
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`because the State of Florida is a resident of this judicial district. Venue lies in
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`this district under that provision for the independent reason that a substantial
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`part of the events or omissions giving rise to the claim occurred in this judicial
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`district—Tampa Bay is a major cruise port.
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`FACTUAL BACKGROUND
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`Florida’s Cruise Industry
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`21. The cruise industry is an essential part of Florida’s economy. In
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`2019, the industry’s direct expenditures in Florida generated “nearly 159,000
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`total jobs paying $8.1 billion in income.”6
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`22. Of all cruise embarkations in the United States, approximately
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`60% embark from Florida.7 In 2019, approximately 11 million cruise
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`passengers and crew members came ashore in Florida. These visitors spend
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`money in Florida’s local economies, and many Florida businesses depend on
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`them.
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`The COVID-19 Pandemic
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`23. Beginning in early 2020, the COVID-19 pandemic devastated the
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`cruise industry, like it did many industries. Outbreaks aboard cruise ships
`
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`6 https://cruising.org/-/media/research-updates/research/2019-usa-cruise-eis.ashx, at 11, 43.
`7 https://cruising.org/-/media/research-updates/research/2019-usa-cruise-eis.ashx, at 6, 9, 15,
`42.
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`6
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`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 7 of 21 PageID 7
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`were a significant concern, and experts, public officials, and medical personnel
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`had a limited understanding of the virus, how to treat it, and how to prevent
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`its transmission.
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`24.
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`In March 2020, many cruise ships in the U.S. voluntarily ceased
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`operations. Around that same time, on March 14, 2020, the CDC began issuing
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`nationwide lockdown orders applicable to the cruise industry, just as many
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`states issued lockdown orders against their citizens. See Ex. 2.
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`25. The CDC renewed its March 14 Order on April 9, July 16, and
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`September 30. See Ex. 3; Ex. 4; Ex. 5.
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`26. The cruise industry has been “ravaged,” with “companies
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`reporting billions of dollars in losses, causing some of them to downsize their
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`fleets and sell ships for scrap.”8
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`The October 30 Conditional Sailing Order
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`27. On October 30, 2020, the CDC offered the cruise industry a
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`glimmer of hope. Just as airlines, bus lines, hotels, restaurants, universities,
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`theme parks, casinos, bars, and countless other industries have learned
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`lessons during the pandemic and figured out how to operate safety—usually
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`with precautions and reduced capacity—the CDC indicated that the cruise
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`industry could do the same.
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`8 https://www.nytimes.com/2021/03/19/travel/coronavirus-cruises.html.
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`
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`7
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`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 8 of 21 PageID 8
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`28.
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`In its Conditional Sailing Order, the CDC purported to lift its
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`lockdown order. It found that the “benefits of” opening “outweigh the costs of
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`not allowing cruise ships to sail” so long as “cruise ships have taken the
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`necessary precautions to mitigate risk.” Ex. 1 at 16. But, as explained below,
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`the Order has been “nothing more than an extension of a cruise ban wrapped
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`as a present.”9
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`29.
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` The Order begins by incorporating the findings of the earlier
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`lockdown orders, and it expressly relies on what occurred on cruise ships at the
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`beginning of the pandemic when the entire world was struggling to control the
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`spread of COVID-19. Ex. 1 at 8, 12. It also expressly bases its conclusions on
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`the lack of an available “FDA . . . authorized vaccine.” Id. at 8.
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`30. The Order then praises the cruise industry for taking “steps to
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`improve their public health response to COVID-19.” Id. at 13.
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`31. Next, the Order discusses the CDC’s “Request for Information,”
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`which appears to be the CDC’s attempt to solicit feedback from the public
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`without formally committing to notice and comment. Id. at 14.
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`32. The Order then discusses the alternatives it considered. It appears
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`to have considered only two: (1) outright free rein for cruise ships with no
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`9 https://www.cruisehive.com/signs-that-cruises-could-start-in-june-from-the-u-s/47910.
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`
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`8
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`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 9 of 21 PageID 9
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`oversight and no COVID-19 safety protocols whatsoever, and (2) continuing its
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`lockdowns. Id. at 15–16.
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`33. After discussing these alternatives, the Order explains its “plan”
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`for reopening. This involves four phases: (1) “establishment of laboratory
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`testing of crew onboard cruise ships in U.S. waters,” (2) “simulated voyages
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`designed to test a cruise ship operator’s ability to mitigate COVID-19 on
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`cruise ships,” (3) “a certification process,” and (4) “a return to passenger
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`voyages in a manner that mitigates the risk of COVID-19.” Id. at 16–17.
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`34. Unlike the previous orders, which were of limited time duration
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`and had to be renewed, the Conditional Sailing Order is effective for a year,
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`until November 1, 2021. Id. at 41. In other words, unless cruise ship
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`companies can complete the four-phase process, they will be shut down until
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`November 1, 2021.
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`35. Much has changed since October 30, 2020.
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`36. First, multiple FDA-approved vaccines are now available, and
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`most of the U.S. population will likely be vaccinated by summer. See ¶¶ 3,
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`5. Moreover, the effectiveness of the FDA-approved COVID-19 vaccines
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`dwarfs the effectiveness of, for example, the average influenza vaccine. This
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`
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`9
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`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 10 of 21 PageID 10
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`explains why, on March 8, 2021, the CDC released a statement that fully
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`vaccinated people could, in its view, begin resuming certain activities.10
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`37. Second, the cruise industry is “stirring to life” abroad.11 European
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`and Asian cruises, for example, are reopening with “resounding success.”12
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`Indeed, “[t]here have already been some success stories out of Europe where
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`cruise lines have shown that they’ve got great protocols in place, that they are
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`committed to adhering to them, that they can keep passengers in a bubble and
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`that they can do effective testing.”13
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`38. Third, other industries—such as airlines, bus lines, hotels,
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`restaurants, universities, theme parks, casinos, and bars—have continued to
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`reopen successfully with reasonable COVID-19 protocols.
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`39. As all of these changes were rendering the burdensome four-phase
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`reopening process obsolete, the CDC made little progress. Over five months in,
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`no cruise company has begun phase-two test voyages.
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`40. At a March 18, 2021 Senate hearing, Senator Lisa Murkowski of
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`Alaska asked Defendant CDC Director Walensky to “give . . . some indicator in
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`10 https://www.cdc.gov/media/releases/2021/p0308-vaccinated-guidelines.html.
`11 https://www.nytimes.com/2021/03/19/travel/coronavirus-cruises.html.
`12 https://www.cruisehive.com/signs-that-cruises-could-start-in-june-from-the-u-s/47910.
`13 https://www.nytimes.com/2021/03/19/travel/coronavirus-cruises.html.
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`10
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`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 11 of 21 PageID 11
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`terms of a timeline” for phase two. Ex. 6 at 7. Defendant Walensky responded,
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`“I can’t.” Id.
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`41. At this rate, it is likely the industry will be locked down until at
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`least November. While the CDC issued new guidance on April 2, 2021, this
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`guidance is only a portion of what the industry needs before it can start phase-
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`two test voyages.14 And this new guidance doesn’t adequately account for the
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`CDC’s recent statement that “fully vaccinated people can travel at low risk to
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`themselves.”15 Moreover, the guidance moves the goal posts yet again. For
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`example, the CDC has increased the reporting frequency of COVID-19-like
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`illnesses by cruise ship operators from weekly to daily. It also now requires
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`cruise ship operators to enter into agreements with all U.S. port and local
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`health authorities where they intend to dock.
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`42. The CDC has continued these actions against the cruise industry
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`even as it has treated similar industries differently, including ones that hold
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`passengers in close quarters. For example, the CDC has not shut down the
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`airline
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`industry—focusing
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`instead
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`on
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`“cleaning
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`of aircraft” and
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`“recommendations for hand hygiene.”16
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`https://www.cdc.gov/quarantine/cruise/management/technical-instructions-for-cruise-
`14
`ships.html; https://www.cdc.gov/quarantine/cruise/instructions-local-agreements.html.
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`15 https://www.cdc.gov/media/releases/2021/p0402-travel-guidance-vaccinated-people.html.
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`16 https://www.cdc.gov/quarantine/air/managing-sick-travelers/ncov-airlines.html.
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`11
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`Florida’s Irreparable Harm
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`43. As a result of Defendants’ actions, Florida has suffered hundreds
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`of millions of dollars in harm, perhaps more. During the pandemic, Florida’s
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`ports have suffered a decline in operating revenue of almost $300 million,
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`and this figure is projected to increase to nearly $420 million by July 2021.
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`44.
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`In 2019, before Defendants shut down the cruise industry, Florida
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`received approximately $102.8 million in tax revenue from embarkations.
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`45. And even the above numbers do not fully account for the
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`economic impact on Florida of Defendants’ actions. For example, since
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`March 1, 2020, at least 6,464 former cruise industry employees have filed
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`for state Reemployment Assistance benefits. Florida has paid them
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`approximately $20 million in state benefits. And Florida receives other taxes
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`as a direct or indirect result of the cruise industry, such as employment
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`taxes and ground transportation taxes.
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`46. Finally, if the U.S. cruise industry does not reopen soon, cruise
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`lines are considering relocating abroad. They may never come back.
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`47. Florida now seeks relief from this Court to prevent the
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`irreparable harm Defendants’ actions are causing.
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`12
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`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 13 of 21 PageID 13
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`CLAIMS
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`COUNT 1
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`Agency action not in accordance
`with law and in excess of authority
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`(Violation of the APA)
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`48. Florida repeats and incorporates by reference ¶¶ 1–47.
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`49. Under the APA, a court must “hold unlawful and set aside agency
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`action”
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`that
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`is
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`“not
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`in accordance with
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`law” or
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`“in excess of
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`statutory . . . authority, or limitations, or short of statutory right.” See 5 U.S.C.
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`§ 706(2)(A), (C).
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`50. The Conditional Sailing Order purports to derive its statutory and
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`regulatory authority from 42 U.S.C. § 264 and 42 C.F.R. § 70.2 (the regulation
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`implementing Section 264).17 Ex. 1 at 2, 20.
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`51. The Order is in excess of that authority in several ways.
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`52. First, neither 42 U.S.C. § 264 nor 42 C.F.R. § 70.2 authorizes the
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`CDC to make or enforce regulations that suspend the operation of cruise ships,
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`much less every cruise ship in the country. Such a reading of those provisions
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`would be “tantamount to creating a general federal police power.” Skyworks,
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`Ltd. v. CDC, 2021 WL 911720, at *10 (N.D. Ohio 2021).
`
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`17 Any other authorities the CDC has relied on are related to these two authorities, and fail
`to justify the CDC’s actions for the same reasons discussed below. See, e.g., 42 U.S.C. § 268;
`42 C.F.R. § 71.31(b).
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`
`
`13
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`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 14 of 21 PageID 14
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`53. Second, Sections 264 and 70.2 permit the CDC to act only if it first
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`“determines that the measures taken by” a state “are insufficient to prevent
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`the spread” of a communicable disease “from such State . . . to any other State.”
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`42 C.F.R. § 70.2. But here, the CDC has made no valid determination that the
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`measures taken by Florida to protect the health and safety of its residents and
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`tourists are insufficient. And any such determination would have to first take
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`into account that people are now traveling with protective measures like
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`vaccines, sanitation, and social distancing, and that the cruise industry has
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`safely and successfully resumed sailing outside of U.S. waters.
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`54. Third, the CDC’s reading of its authority under 42 U.S.C. § 264 is
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`wrong because it is divorced from context. The statute gives the CDC the
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`authority to “make and enforce such regulations as in [its] judgment are
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`necessary to prevent
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`the
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`introduction,
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`transmission, or spread of
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`communicable diseases from foreign countries into the States or possessions,
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`or from one State or possession into any other State or possession.” 42 U.S.C.
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`§ 264(a). But in the next sentence, the statute clarifies that to “carry[] out and
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`enforc[e]” those regulations, it authorizes the CDC to conduct “such inspection,
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`fumigation, disinfection, sanitation, pest extermination, destruction of animals
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`or articles found to be so infected or contaminated as to be sources of dangerous
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`infection to human beings, and other measures, as in [CDC’s] judgment may
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`be necessary.” Id. This second sentence clarifies the narrow nature of this
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`14
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`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 15 of 21 PageID 15
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`authority. See, e.g., Paroline v. United States, 572 U.S. 434, 447 (2014)
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`(discussing catch-all terms that “bring[] within a statute categories similar in
`
`type to those specifically enumerated”); Antonin Scalia & Bryan Garner,
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`Reading Law: The Interpretation of Legal Texts 199 (2012) (“Where general
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`words follow an enumeration of two or more things, they apply only to persons
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`or things of the same general kind or class specifically mentioned (ejusdem
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`generis).”); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“In
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`ascertaining the plain meaning of [a] statute, the court must look to the
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`particular statutory language at issue, as well as the language and design of
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`the statute as a whole.”). In other words, the “second sentence . . . lists
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`illustrative examples of the types of actions the CDC may take,” and those
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`examples limit the scope of the CDC’s authority. Skyworks, 2021 WL 911720,
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`at *9 (so holding); accord Tiger Lily, LLC v. Dep’t of Hous. & Urb. Dev., 2021
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`WL 1165170 (6th Cir. 2021) (“Plainly, government intrusion on property to
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`sanitize and dispose of infected matter is different in nature from a moratorium
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`on evictions.”).
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`COUNT 2
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`Arbitrary and capricious agency action
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`(Violation of the APA)
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`55. Florida repeats and incorporates by reference ¶¶ 1–47.
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`
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`15
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`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 16 of 21 PageID 16
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`56. Under the APA, a court must “hold unlawful and set aside agency
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`action” that is “arbitrary [or] capricious,” as Defendants’ actions are here. 5
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`U.S.C. § 706(2)(A).
`
`57. First, Defendants ignored important aspects of the problem. See
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`Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
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`U.S. 29, 43 (1983); see also Michigan v. EPA, 576 U.S. 743, 751–53, 759–60
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`(2015). The lack of an FDA-approved vaccine in October 2020 was central to
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`Defendants’ decision to impose a burdensome framework on the cruise
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`industry, yet Defendants did not consider the fact that vaccines would be
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`available long before the Order expires in November 2021. And they have made
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`inadequate efforts to consider the significant developments on that front since.
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`Moreover, Defendants have made no effort to account for the success of foreign
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`cruise companies, which operate safely with reasonable COVID-19 protocols.
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`Instead, Defendants rely on stale information from the beginning of the
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`pandemic before industries and public-health officials learned how businesses
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`could operate safely.
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`58. Second, Defendants’ reasoning
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`is
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`inadequate. See Encino
`
`Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). “The agency must
`
`examine the relevant data and articulate a satisfactory explanation for its
`
`action including a rational connection between the facts found and the choice
`
`made.” Id. In addition to the issues discussed in the preceding paragraph, the
`
`
`
`16
`
`
`
`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 17 of 21 PageID 17
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`Conditional Sailing Order states that it is necessary because “measures taken
`
`by State and local health authorities regarding COVID-19 onboard cruise ships
`
`are inadequate,” but the Order does not identify the measures taken by States
`
`and localities and the cruise industry itself, much less explain how the
`
`measures are inadequate. See Ex. 1 at 19.
`
`59. Third, Defendants failed to consider lesser alternatives, see DHS
`
`v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913 (2020); FCC v. Fox
`
`Television Stations, Inc., 556 U.S. 502, 515 (2009), such as imposing reasonable
`
`COVID-19 protocols, which have proved successful abroad.
`
`60. Fourth, Defendants failed to explain their differential treatment of
`
`the cruise industry versus other industries. It is “textbook administration law
`
`that an agency must provide a reasoned explanation for . . . treating similar
`
`situations differently.” W. Deptford Energy, LLC v. FERC, 766 F.3d 10, 20
`
`(D.C. Cir. 2014) (cleaned up). “[A]n agency must treat similar cases in a similar
`
`manner unless it can provide a legitimate reason for failing to do so.” Kreis v.
`
`Sec’y of Air Force, 406 F.3d 684, 687 (D.C. Cir. 2005).
`
`61. Fifth, Defendants have acted in an arbitrary and capricious
`
`manner by failing to meaningfully follow their own Conditional Sailing
`
`Order. The Order provides that cruise lines will have an opportunity to
`
`complete a four-phase framework and “return to passenger operations,” see
`
`Ex. 1 at 16–17, but the CDC has neither provided cruise lines an opportunity
`
`
`
`17
`
`
`
`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 18 of 21 PageID 18
`
`to complete the framework nor allowed any cruise line to return to passenger
`
`operations, notwithstanding that the “benefits of” opening “outweigh the costs
`
`of not allowing cruise ships to sail,” Ex. 1 at 16.
`
`COUNT 3
`
`Agency Action Unlawfully Withheld or Unreasonably Delayed
`
`(Violation of the APA)
`
`62. Florida repeats and incorporates by reference ¶¶ 1–47, 57–61.
`
`63.
`
`In the alternative, and for the same reasons stated in Count 2,
`
`Defendants’ failure to allow the cruise industry to safely reopen constitutes
`
`final agency action unlawfully withheld or unreasonably delayed, in
`
`violation of 5 U.S.C. § 706.
`
`COUNT 4
`
`Failure to Provide Notice and Comment
`
`(Violation of the APA)
`
`64. Florida repeats and incorporates by reference ¶¶ 1–47.
`
`65. The APA required Defendants to provide notice of, and receive
`
`comment on, the Conditional Sailing Order because it is a substantive rule that
`
`“affect[s] individual rights and obligations.” Chrysler Corp. v. Brown, 441 U.S.
`
`281, 303 (1979); see 5 U.S.C. § 553.
`
`66. Defendants, however, failed to conduct proper notice and comment
`
`rulemaking. As a perennial excuse, Defendants seem to rely on the “good
`
`
`
`18
`
`
`
`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 19 of 21 PageID 19
`
`cause” exception to the notice requirement, see 5 U.S.C. § 553(b)(B), and lean
`
`heavily on the year-old “emergency” of COVID-19. See, e.g., Ex. 1 at 19, 20. But
`
`that exception “is to be narrowly construed and only reluctantly
`
`countenanced.” Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012).
`
`67. Good cause to depart from notice and comment does not exist when
`
`the agency has sufficient time to provide notice and comment. See Kollett v.
`
`Harris, 619 F.2d 134, 145 (1st Cir. 1980); Regeneron Pharm., Inc. v. Dep’t of
`
`Health & Hum. Servs., 2020 WL 7778037, at *11 (S.D.N.Y. Dec. 30, 2020)
`
`(noting that an agency’s contemplation of rulemaking for two years “suggests
`
`that the agency could have acted sooner and complied with the notice and
`
`comment requirements”). So even if the good cause exception were applicable
`
`in March 2020, it no longer applies in April 2021.
`
`68. Moreover, even if an emergency could still be said to exist one year
`
`later such that it justifies “good cause,” this exception to notice and comment
`
`is supposed to be temporary. See Am. Fed’n of Gov’t Emp., AFL-CIO v. Block,
`
`655 F.2d 1153, 1158 (D.C. Cir. 1981).
`
`69. And although the CDC solicited information from the public, the
`
`CDC did not respond or even attempt to address in any meaningful way the
`
`comments provided to it. Ex. 1 at 14–15. This suggests the CDC did not view
`
`that process as satisfying the notice and comment requirements, and even if it
`
`did, its failure to respond is fatal. See Perez v. Mortg. Bankers Ass’n, 575 U.S.
`
`
`
`19
`
`
`
`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 20 of 21 PageID 20
`
`92, 96 (2015) (explaining that “[a]n agency must consider and respond to
`
`significant comments received during the period for public comment”).
`
`COUNT 5
`
`Unconstitutional Exercise of Legislative Power
`
`(Violation of U.S. Const. Art. I, § 1)
`
`70. Florida repeats and incorporates by reference ¶¶ 1–47.
`
`71. Article I, Section 1 of the U.S. Constitution states, “[a]ll legislative
`
`powers herein granted shall be vested in a Congress of the United States.”
`
`Under Article I, Section 1, only Congress may engage in lawmaking.
`
`72.
`
`If the Conditional Sailing Order does not exceed the authority
`
`under 42 U.S.C. § 264 and the relevant regulations, then Section 264
`
`constitutes an unconstitutional exercise of lawmaking by the executive branch,
`
`affording the CDC the power to determine the rights of millions of citizens, to
`
`decide on the survival of countless businesses, and to make a host of sweeping
`
`policy decisions absent meaningful accountability.
`
`PRAYER FOR RELIEF
`
`
`
`For these reasons, Florida asks the Court to:
`
`a) Hold unlawful and set aside the Conditional Sailing Order.
`
`b) Issue preliminary and permanent
`
`injunctive relief enjoining
`
`Defendants from enforcing the Conditional Sailing Order.
`
`c) Postpone the effective date of the Conditional Sailing Order.
`
`
`
`20
`
`
`
`Case 8:21-cv-00839-SDM-AAS Document 1 Filed 04/08/21 Page 21 of 21 PageID 21
`
`d) Declare unlawful the Conditional Sailing Order.
`
`e) Declare that the cruise industry may open with reasonable safety
`
`protocols.
`
`f) Award Florida costs and reasonable attorney’s fees.
`
`g) Award such other relief as the Court deems equitable and just.
`
`Respectfully submitted,
`
`Ashley Moody
`ATTORNEY GENERAL
`
`John Guard (FBN 374600)
`CHIEF DEPUTY ATTORNEY GENERAL
`
`/s/ James H. Percival
`James H. Percival* (FBN 1016188)
`CHIEF DEPUTY SOLICITOR GENERAL
`*Lead Counsel
`
`Jason H. Hilborn (FBN 1008829)
`ASSISTANT SOLICITOR GENERAL
`
`Anita Patel (FBN 70214)
`SENIOR ASSISTANT ATTORNEY GENERAL
`
`Office of the Attorney General
`The Capitol, Pl-01
`Tallahassee, Florida 32399-1050
`(850) 414-3300
`(850) 410-2672 (fax)
`james.percival@myfloridalegal.com
`
`Counsel for the State of Florida
`
`
`
`21
`
`
`
`
`
`
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