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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,
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`v.
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`Case No. 8:21-cv-839-SDM-AAS
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`BECERRA, et al.,
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`Defendants.
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`_________________________________
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`FLORIDA’S MOTION FOR A PRELIMINARY INJUNCTION
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`The COVID-19 pandemic is a great tragedy. But that tragedy has been
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`made worse by leaders who refuse to account for the human cost of shutting
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`down society. Livelihoods have been destroyed, some of them permanently.
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`Now, thankfully, vaccines are available to any adults who want them, and
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`businesses have learned how to mitigate the spread of the virus. Most
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`industries are now back to business, and it is long past time for the rest to
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`follow suit.
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`The cruise industry in Florida cannot do so. It has been locked down for
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`over a year. And this lockdown was not enacted pursuant to the State’s police
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`power, by the United States Congress, or even by the politically accountable
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`President. Rather, it was imposed by the Centers for Disease Control and
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`1
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`Case 8:21-cv-00839-SDM-AAS Document 9 Filed 04/22/21 Page 2 of 27 PageID 296
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`Prevention (“CDC”) pursuant to a limited delegation from Congress to inspect
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`and disinfect property and animals.
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`Congress did not, in granting those limited powers, authorize the CDC
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`to shut down a multi-billion-dollar industry for over a year. The plain text of
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`the CDC’s authority does not authorize these acts, even without applying the
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`major-questions doctrine or clear-statement rule—both of which would apply
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`to such radical power claimed by unaccountable federal bureaucrats. In any
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`event, the CDC’s actions—including its refusal to account for vaccines, other
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`interventions, and the success of cruise industries abroad during the
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`pandemic—violate the Administrative Procedure Act (“APA”).
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`This Court should preliminarily enjoin the CDC’s unlawful acts and
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`allow the approximately 159,000 Floridians whose livelihoods depend on the
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`cruise industry to get back to work. Without this Court’s intervention, Florida
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`will lose millions, if not billions, of dollars. And if companies like Carnival
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`follow through on their threat to move operations abroad, the State of Florida
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`may never be the same.
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`BACKGROUND
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`Florida’s Cruise Industry. The cruise industry is an essential part of
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`Florida’s economy. In 2019, the industry’s direct expenditures in Florida
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`generated “nearly 159,000 total jobs paying $8.1 billion in income.” Ex. 1 at 14,
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`46. Of all cruise embarkations in the United States, about 60% embark from
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`2
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`Florida. Id. at 9, 12, 18, 45. In 2019, around 13.6 million cruise passengers and
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`crew members came ashore in Florida. Id. at 14. These visitors spend money
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`in Florida’s local economies, and many Florida businesses depend on them. Id.
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`at 45–47; Ex. 2 at 6–7.
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`The COVID-19 Pandemic. Beginning in early 2020, the COVID-19
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`pandemic devastated the cruise industry, as it did many industries. Outbreaks
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`aboard cruise ships were a significant concern, and experts, public officials,
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`and medical personnel had a limited understanding of the virus, how to treat
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`it, and how to prevent its transmission. In March 2020, many cruise ships in
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`the U.S. voluntarily ceased operations. ECF 1-3 at 9.
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`That same month the CDC began issuing nationwide lockdown orders
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`against the cruise industry, just as many states issued lockdown orders against
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`their citizens. See ECF 1-4. The CDC renewed its March Order on April 9, July
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`16, and September 30. See ECF 1-5, 1-6, 1-7. The cruise industry has been
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`“ravaged,” with “companies reporting billions of dollars in losses, causing
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`some of them to downsize their fleets and sell ships for scrap.” Ex. 3 at 2.
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`The October 30 Conditional Sailing Order. On October 30, 2020, the
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`CDC offered the cruise industry a glimmer of hope. Just as many other
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`industries have learned lessons during the pandemic and now operate with
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`safety protocols, Exs. 4, 5, 6 (recommending measures like social distancing,
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`mask wearing, and frequent cleaning for hotels, casinos, and sporting
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`3
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`Case 8:21-cv-00839-SDM-AAS Document 9 Filed 04/22/21 Page 4 of 27 PageID 298
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`events), the CDC indicated that the cruise industry could do the same. In its
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`Conditional Sailing Order, the CDC purported to lift its lockdown order. It
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`found that the “benefits of” opening “outweigh the costs of not allowing cruise
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`ships to sail” so long as “cruise ships have taken the necessary precautions to
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`mitigate risk.” ECF 1-3 at 16. But the Order has been “nothing more than an
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`extension of a cruise ban wrapped as a present.” Ex. 7 at 7.
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` The Order begins by incorporating the findings of the earlier lockdown
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`orders, and it expressly relies on what occurred on cruise ships at the beginning
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`of the pandemic when the entire world was struggling to control and
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`understand the spread of COVID-19. ECF 1-3 at 8, 12. It also expressly bases
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`its conclusions on the lack of an available vaccine. Id. at 8. The Order then
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`praises the cruise industry for taking “steps to improve their public health
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`response to COVID-19.” Id. at 13.
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`Next, the Order discusses the CDC’s “Request for Information” in July
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`2020, 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. The Order then
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`discusses the alternatives the CDC considered. It appears to have considered
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`only two: (1) outright free rein for cruise ships with no oversight and no
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`COVID-19 safety protocols and (2) continuing its lockdowns. Id. at 15–16.
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`After discussing these “alternatives,” the Order explains its “plan” for
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`reopening. This plan involves four phases: (1) “establishment of laboratory
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`4
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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. And
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`unlike the previous orders, which were for a short time, the Conditional
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`Sailing Order is effective for a year, until November 1, 2021. Id. at 41. So
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`unless cruise companies can complete the four-phase process, the CDC will
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`lock them down until at least November 1, 2021.
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`The federal government recognizes the scope of these decisions. The
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`Order provides that if it “qualifies as a rule” then the Office of Information
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`and Regulatory Affairs (“OIRA”) “has determined that [the Order] would be
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`a major rule” under the Congressional Review Act, 5 U.S.C. § 804(2). ECF 1-
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`3 at 19.
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`Much has changed since the CDC promulgated the Order in October
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`2020. First, multiple vaccines are now widely available. Over 50% of
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`American adults have received one vaccine dose and 33% are fully
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`vaccinated.1 And the CDC now admits that fully vaccinated people who cruise
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`in other countries “do not need to self-quarantine after cruise travel.” Ex. 8 at
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`2.
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`1 CDC, COVID-19 Vaccinations in the United States, https://covid.cdc.gov/covid-data-
`tracker/#vaccinations (last visited April 22, 2021).
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`5
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`Second, the cruise industry is “stirring to life” abroad. Ex. 3 at 2.
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`European and Asian cruises, for example, are reopening with “resounding
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`success.” Ex. 7 at 6. Around 400,000 passengers have cruised “following
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`stringent, science-based protocols that resulted in a far lower incident rate
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`than on land.” Ex. 9 at 3; see also Ex. 10 at 6:14–18. In fact, the CDC
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`recommends that passengers on those cruises follow safety protocols like social
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`distancing, wearing masks, and handwashing. Ex. 8 at 3.
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`Third, other industries—such as airlines, bus lines, hotels, restaurants,
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`universities, theme parks, casinos, and bars—have reopened without facing
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`CDC lockdowns, even those that hold people in close quarters. For example,
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`the CDC has not shut down the airline industry—focusing instead on “cleaning
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`of aircraft” and “recommendations for hand hygiene.” Ex. 11 at 2–4.
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`As these advancements were rendering the burdensome, four-phase
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`reopening process for cruises obsolete, the CDC made little progress. Almost
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`six months in, no cruise company has begun phase two test voyages. At a March
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`18, 2021 Senate hearing, Senator Lisa Murkowski of Alaska asked Defendant
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`CDC Director Walensky to “give . . . some indicator in terms of a timeline” for
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`phase two. ECF 1-8 at 7. Defendant Walensky responded, “I can’t.” Id.
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`At this rate, the CDC will likely continue its lock down until November.
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`That means the cruise industry will miss out—again—on the critical summer
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`cruising season. Although the CDC issued new guidance on April 2, 2021, this
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`6
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`guidance is only some of what the industry needs before it can start phase two
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`test voyages. Ex. 12; Ex. 13; Ex. 14; Ex. 10 at 6:19–7:2; Ex. 8 at 2. And the new
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`guidance does not adequately account for the CDC’s recent statement that
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`“fully vaccinated people can travel at low risk to themselves,” Ex. 15 at 2, or
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`its admission that—contrary to earlier claims—“touching surfaces is not
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`thought to be a common way that COVID-19 spreads.” Ex. 16 at 3.
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`The latest guidance makes clear that the CDC does not intend to proceed
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`with reopening the cruise industry in good faith—in fact, one commentator
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`recently referred to the CDC’s process as a “ruse” designed to “keep the
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`industry docked.” Ex. 17 at 3. Florida now seeks relief from this Court.
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`LEGAL STANDARD
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`A plaintiff seeking a preliminary injunction must establish (1) “that he
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`is likely to succeed on the merits,” (2) “that he is likely to suffer irreparable
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`harm in the absence of preliminary relief,” (3) “that the balance of equities tips
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`in his favor,” and (4) “that an injunction is in the public interest.” Winter v.
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`Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
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`ARGUMENT
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`I.
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`FLORIDA IS LIKELY TO SUCCEED ON THE MERITS OF ITS CLAIMS
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`a. The Conditional Sailing Order violates the APA.
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`Under the APA, courts must “hold unlawful and set aside” agency action
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`that is “in excess of statutory jurisdiction, authority, or limitations”; that is
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`7
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`“not in accordance with law”; or that is “arbitrary, capricious, [or] an abuse of
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`discretion.” 5 U.S.C. § 706(2)(A), (C). These are disjunctive, so “[e]ven when an
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`administrative agency did not act ‘in excess of statutory jurisdiction,’ . . . it still
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`may have acted arbitrarily and capriciously.” In re Gateway Radiology
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`Consultants, P.A., 983 F.3d 1239, 1262–63 (11th Cir. 2020).
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`i. The Conditional Sailing Order exceeds the CDC’s authority.
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`Defendants have “gone beyond what Congress has permitted [them] to
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`do.” City of Arlington v. FCC, 569 U.S. 290, 298 (2013). The CDC bases its
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`Conditional Sailing Order mainly on 42 U.S.C. § 264, but also on a handful of
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`regulations. ECF 1-3 at 20.2 Because neither that statute nor the cited
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`regulations give the CDC the power it claims, its actions violate the APA. See
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`City of Arlington, 569 U.S. at 298.
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`1. Section 264 gives the CDC the authority to “make and enforce such
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`regulations as in [its] judgment are necessary to prevent the introduction,
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`transmission, or spread of communicable diseases from foreign countries into
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`the States or possessions, or from one State or possession into any other State
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`or possession.” 42 U.S.C. § 264(a). But in the next sentence, the statute clarifies
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`that to “carry[] out and enforc[e]” those regulations, Congress authorizes the
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`2 42 U.S.C. § 268—which the CDC also references in the Order (ECF 1-3 at 20)—authorizes
`the CDC to enlist the help of other officers to enforce its rules but does not grant any more
`authority. And neither do 18 U.S.C. § 3559, 18 U.S.C. § 3571, and 42 U.S.C. § 271—also cited
`by the Order (ECF 1-3 at 20)—which address sentencing, fines, and penalties. And 42 U.S.C.
`§ 243 (ECF 1-3 at 20) authorizes the CDC only to accept help from states.
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`8
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`CDC only to conduct “such inspection, fumigation, disinfection, sanitation, pest
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`extermination, destruction of animals or articles found to be so infected or
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`contaminated as to be sources of dangerous infection to human beings, and
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`other measures, as in [the CDC’s] judgment may be necessary.” Id.
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`This second sentence clarifies the narrow nature of the CDC’s authority.
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`“[W]here general words follow specific words in a statutory enumeration, the
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`general words are construed to embrace only objects similar in nature to those
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`objects enumerated by the preceding specific words.” Circuit City Stores, Inc.
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`v. Adams, 532 U.S. 105, 114–15 (2001).3 The residual phrase “other measures,”
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`42 U.S.C. § 264(a), is “controlled and defined by reference to the enumerated
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`categories . . . before it,” Circuit City, 532 U.S. at 115. These “other measures”
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`thus are limited to measures like “inspection, fumigation, disinfection,
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`sanitation, [and] pest extermination,” and they are applied to “animals or
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`articles” that are “so infected” that they are “sources of dangerous infections to
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`human beings.” § 264(a). Put differently, the “second sentence . . . lists
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`illustrative examples of the types of actions the CDC may take” and against
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`whom or what the CDC may take those actions. Skyworks, Ltd. v. CDC, 2021
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`3 Accord Paroline v. United States, 572 U.S. 434, 447 (2014) (Catch-all terms “bring[] within
`a statute categories similar in type to those specifically enumerated.”); Antonin Scalia &
`Bryan Garner, Reading Law: The Interpretation of Legal Texts 199 (2012) (“Where general
`words follow an enumeration of two or more things, they apply only to persons or things of
`the same general kind or class specifically mentioned (ejusdem generis).”); see also Reading
`Law at 195 (“Associated words bear on one another’s meaning (noscitur a sociis).”).
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`9
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`Case 8:21-cv-00839-SDM-AAS Document 9 Filed 04/22/21 Page 10 of 27 PageID 304
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`WL 911720, at *9 (N.D. Ohio Mar. 10, 2021). And those examples limit the
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`scope of the CDC’s authority. Id. (so holding).
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`The ordinary meaning of the text, then, is that Congress authorized the
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`CDC to take only “other measures” that are “similar in nature” to inspecting
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`and disinfecting animals and articles. The Sixth Circuit recently agreed with
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`that conclusion in denying the CDC a stay of an injunction against its eviction
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`moratorium. “Plainly,” the Sixth Circuit explained, “government intrusion on
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`property to sanitize and dispose of infected matter” under § 264 “is different in
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`nature from a moratorium on evictions.” Tiger Lily, LLC v. HUD, --- F.3d ---,
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`2021 WL 1165170, at *3 (6th Cir. 2021).
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`Moreover, given the gravity of the power the CDC claims,4 it must
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`identify a clear statement from Congress, which it cannot do. Congress does
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`not “hide elephants in mouseholes,” Whitman v. Am. Trucking Ass’ns, 531 U.S.
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`457, 468 (2001), and it “speak[s] clearly if it wishes to assign to an agency
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`decisions of vast economic and political significance,” Util. Air Regul. Grp. v.
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`EPA, 573 U.S. 302, 324 (2014) (quotation omitted).5 While the statutory text
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`4 The CDC admits that if the Conditional Sailing Order “qualifies as a rule”—which it does—
`then OIRA has determined it is a “major rule.” ECF 1-3 at 19. That means the Order is likely
`to have at least a $100 million effect on the economy or some other significant—or “major”—
`adverse effect, Ex. 18; 5 U.S.C. § 804(2).
`5 Accord FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000) (“Congress
`could not have intended to delegate a decision of such economic and political significance to
`an agency in so cryptic a fashion.”); King v. Burwell, 576 U.S. 473, 485–86 (2015) (similar);
`Indus. Union Dep’t v. API, 448 U.S. 607, 645 (1980) (plurality op.) (similar); U.S. Telecom
`Ass’n v. FCC, 855 F.3d 381, 417 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of
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`10
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`does not support the CDC’s position at all, it certainly does not satisfy that
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`higher standard.
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`Finally, to the extent § 264 is ambiguous—a point Florida contests—
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`Courts also must avoid interpretations that raise significant “constitutional
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`questions.” Jones v. United States, 529 U.S. 848, 857 (2000). Accepting the
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`CDC’s “broad construction” of its statutory authority “raises . . . concerns about
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`federalism” and “concerns about the delegation of legislative power to the
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`executive branch.” Tiger Lily, 2021 WL 1165170, at *4. If this Court determines
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`that § 264 is ambiguous, it should adopt Florida’s reading of the statute.
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`2. Beyond § 264, the Order relies on 42 C.F.R. §§ 70.2, 71.31(b), and
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`71.32(b).6 ECF 1-3 at 20. But if the CDC lacks the statutory authority under
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`§ 264 for the Order—which it does—regulations implementing § 264 cannot
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`grant the CDC more authority. See, e.g., Am. Fin. Servs. Ass’n v. FTC, 767 F.2d
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`957, 965 (D.C. Cir. 1985). Further, these regulations fail to move the needle,
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`and § 70.2 provides an independent basis to find the Conditional Sailing Order
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`unlawful.
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`Section 70.2 largely tracks the relevant language of § 264 and fails to
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`rehearing en banc) (“[T]he Supreme Court has required clear congressional authorization for
`major agency rules of this kind.”); see also Gregory v. Ashcroft, 501 U.S. 452, 460–61 (1991)
`(discussing “plain statement rule”).
`6 The CDC also cites two more regulations as authority to issue and enforce the Order. These
`regulations address penalties and fines, but do not grant more authority. ECF 1-3 at 20
`(citing 42 C.F.R. §§ 70.18 and 71.2).
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`11
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`authorize the challenged acts for the same reasons. But § 70.2 renders the
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`Order ultra vires for another reason. Section 70.2 allows the CDC to exercise
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`its § 264 authority only if it first “determines that the measures taken by” a
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`state “are insufficient to prevent the spread” of a communicable disease “from
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`such State . . . to any other State.” 42 C.F.R. § 70.2. The CDC, however, refused
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`to consider measures by Florida and the industry, claiming that § 70.2 is per se
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`satisfied because “[c]ruise ships by their very nature travel interstate and
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`internationally.” ECF 1-3 at 19. That argument proves too much. Livestock
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`and people, for example, also travel internationally and cross state lines. The
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`CDC’s regulations require it to consider the adequacy of Florida’s measures
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`and it did not do so.
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`Nor do any of the other regulations the CDC cites authorize the
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`Conditional Sailing Order. Section 71.31 addresses inspecting ships, including
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`detaining them for the limited period needed to conduct the inspection.
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`Subpart (a) allows inspection if a carrier reports that any of its passengers are
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`sick or died or if the carrier is importing articles that require disinfection under
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`§ 71.42. Subpart (b) allows the CDC to “require detention of a carrier until
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`completion of the measures outlined in this part.” These measures include, for
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`example, “non-invasive procedures . . . to detect the potential presence of
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`communicable diseases,” § 71.20(a); “requir[ing] individuals to provide contact
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`information,” § 71.20(b); determining whether to inspect a ship, § 71.31(a);
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`12
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`quarantining arriving
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`individuals, §§ 71.32–33;
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`requiring medical
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`examinations of arriving individuals, § 71.36; and disinfecting cargo, § 71.42.
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`These are detailed, explicit “measures” the CDC may take to inspect ships.
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`Shutting down the cruise industry is not such a “measure.” And if the CDC
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`argues that its Conditional Sailing Order is the “detention of a carrier” under
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`§ 71.31(b), that detention is authorized only for the limited period needed to
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`conduct authorized inspections and quarantines. The CDC cannot detain
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`cruise ships indefinitely.
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`Section 71.32(b) similarly allows the CDC to “require detention,
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`disinfection, disinfestation, fumigation, or other related measures” when the
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`CDC “has reason to believe that any arriving carrier or article or thing on board
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`the carrier is or may be infected or contaminated with a communicable
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`disease.” As with § 71.31(b), the “detention” must be limited to the time needed
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`to disinfect the ship and complete “other related measures.”
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`Properly read, these regulations make sense as an outflow of § 264,7
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`which allows the government in limited situations to sanitize and disinfect
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`certain objects, quarantine sick individuals, and take other similar measures.
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`7 “It is a ‘foundational principle of administrative law’ that judicial review of agency action is
`limited to ‘the grounds that the agency invoked when it took the action.’” DHS v. Regents of
`the Univ. of Cal., 140 S. Ct. 1891, 1907 (2020). The CDC represented that it issued the Order
`under 18 U.S.C. §§ 3559, 3571; 42 U.S.C. §§ 243, 264, 268, 271; and 42 C.F.R. §§ 70.18, 70.2,
`71.2, 71.31(b), 71.32(b). ECF 1-3 at 20. Florida has addressed those here and the CDC may
`not now rely on new statutes and regulations.
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`13
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`They do not allow a year-long industry shutdown.
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`ii. The Conditional Sailing Order is arbitrary and capricious.
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`Under the APA, a court must “hold unlawful and set aside agency action”
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`that is “arbitrary [or] capricious,” as Defendants’ actions are here. 5 U.S.C.
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`§ 706(2)(A).
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`First, Defendants ignored important aspects of the problem. See Motor
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`Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983);
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`see also Michigan v. EPA, 576 U.S. 743, 751–53, 759–60 (2015). The lack of a
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`vaccine in October 2020 was central to Defendants’ decision to impose a
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`burdensome framework on the cruise industry. ECF 1-3 at 8. But Defendants
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`did not consider the fact that vaccines would be available long before the Order
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`expires in November 2021—even though one month before he signed the Order,
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`then-CDC Director Robert Redfield told the U.S. Senate to expect a vaccine in
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`late 2020.8 And Defendants have made inadequate efforts to consider the
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`significant developments on that front since.9 Defendants also have not tried
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`to account for the success of foreign cruise companies, which operate with
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`COVID-19 protocols. Instead, they rely on stale information from the
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`
`8 U.S. Sen. Comm. on Appropriations, Review of Coronavirus Response Efforts, 1:26:30–
`1:28:00
`(Sept. 16, 2020),
`https://www.appropriations.senate.gov/hearings/review-of-
`coronavirus-response-efforts.
`9 CDC, COVID-19 Vaccinations in the United States, https://covid.cdc.gov/covid-data-
`tracker/#vaccinations (last visited April 22, 2021).
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`14
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`beginning of the pandemic before industries and public-health officials learned
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`how businesses could operate safely. ECF 1-3 at 3–4 (incorporating “findings
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`and other evidence” from March 2020).
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`Second, Defendants’ reasoning is inadequate. See Encino Motorcars,
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`LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). “The agency ‘must examine the
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`relevant data and articulate a satisfactory explanation for its action including
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`a rational connection between the facts found and the choice made.’” Id. The
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`CDC found that “[t]he benefits of” opening the cruise industry “outweigh the
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`costs of not allowing cruise ships to sail.” ECF 1-3 at 16. But its actions—
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`specifically, continuing to lock down the industry—do not rationally connect to
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`that conclusion. Accord Nat’l Lifeline Ass’n v. FCC, 921 F.3d 1102, 1111 (D.C.
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`Cir. 2019) (“An agency cannot ignore its prior factual findings that contradict
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`its new policy.”).
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`Facts on the ground further contradict the CDC’s reasoning. The
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`Conditional Sailing Order purportedly seeks to “prevent the further
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`introduction, transmission, and spread of COVID-19 into and throughout the
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`United States.” ECF 1-3 at 9. But the Order has caused American cruise
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`passengers to board American flights—which the CDC has not locked down—
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`to fly to other countries, cruise, and then fly back to the United States, at which
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`point they need not quarantine. Ex. 9 at 3; Ex. 10 at 11:9–13. The CDC’s
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`reasoning behind shutting down the cruise industry is therefore flawed.
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`15
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`Case 8:21-cv-00839-SDM-AAS Document 9 Filed 04/22/21 Page 16 of 27 PageID 310
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`The Conditional Sailing Order also reasons that it is necessary because
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`“measures taken by State and local health authorities regarding COVID-19
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`onboard cruise ships are inadequate,” ECF 1-3 at 19, and that COVID-19
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`“transmission has not been controlled sufficiently by the cruise ship industry.”
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`ECF 1-3 at 17. But the cruise industry has not operated since March 2020. And
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`the Order does not even consider measures taken or proposed by Florida, its
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`local governments, or the cruise industry since then.
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`Third, Defendants ignored lesser alternatives, see DHS v. Regents of the
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`Univ. of Cal., 140 S. Ct. 1891, 1913 (2020); FCC v. Fox Television Stations, Inc.,
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`556 U.S. 502, 515 (2009), such as imposing safety protocols. See Ex. 8 at 3; Ex.
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`9 at 3. The CDC instead took an all-or-nothing approach, considering only two
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`extreme “alternatives”: continuing the cruise-industry lockdown or letting the
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`industry sail with zero safety measures. That is especially glaring because the
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`CDC considered lesser alternatives for every other industry.
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`Fourth, Defendants failed to explain their differential treatment of the
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`cruise industry versus other industries. Agencies “must treat similar cases in
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`a similar manner.” Kreis v. Sec’y of Air Force, 406 F.3d 684, 687 (D.C. Cir.
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`2005). If they don’t, they must explain why, W. Deptford Energy, LLC v. FERC,
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`766 F.3d 10, 20 (D.C. Cir. 2014), and provide a “legitimate reason,” Kreis, 406
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`F.3d at 687. But Defendants did not even try to explain why they chose to lock
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`down the cruise industry but not lock down hotels, casinos, airlines, sporting
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`16
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`Case 8:21-cv-00839-SDM-AAS Document 9 Filed 04/22/21 Page 17 of 27 PageID 311
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`events, and similar industries that involve people in close quarters.
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`Fifth, Defendants have acted in an arbitrary and capricious manner by
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`failing to meaningfully follow their own Conditional Sailing Order. The Order
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`provides that cruise lines will be able to complete a four-phase framework and
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`“return to passenger operations.” ECF 1-3 at 16–17. But the CDC has neither
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`provided cruise lines an opportunity to complete the framework nor allowed
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`any cruise line to return to passenger operations, even though, again, the CDC
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`has found that the “benefits of” opening “outweigh the costs of not allowing
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`cruise ships to sail.” ECF 1-3 at 16.
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`iii. The CDC is unlawfully withholding or unreasonably
`delaying actions to which it has committed.
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`If the Court determines that the CDC does have the statutory authority
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`to promulgate the Conditional Sailing Order and shut down the cruise
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`industry—which it does not—then the CDC is violating its own Order. Almost
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`six months later, the cruise industry remains stuck in phase one. By refusing
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`to comply with its own order, the CDC is unlawfully withholding and
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`unreasonably delaying its own action under the APA. 5 U.S.C. § 706.
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`iv. The CDC failed to provide notice and comment.
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`The APA required Defendants to provide notice of, and receive comment
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`on, the Conditional Sailing Order because it is a substantive rule that “affect[s]
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`individual rights and obligations.” Chrysler Corp. v. Brown, 441 U.S. 281, 303
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`
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`17
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`
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`Case 8:21-cv-00839-SDM-AAS Document 9 Filed 04/22/21 Page 18 of 27 PageID 312
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`
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`(1979); see 5 U.S.C. § 553. The Order—among other things—prevents the
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`cruise industry from sailing, cruise-industry employees from working, and
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`Florida’s hotels, restaurants, gas stations, and other industries from receiving
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`the business of would-be cruise passengers. Ex. 1 at 45–47; Ex. 2 at 6–7. And
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`it causes Florida to pay unemployment benefits, deprives Florida of tax
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`revenue, and harms Florida’s economy, ports, and public fisc. The CDC also
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`admits that, if it is a rule, it is a major rule with at least a $100 million impact.
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`ECF 1-3 at 19; Ex. 18; 5 U.S.C. § 804(2).
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`Defendants, however, failed to conduct proper notice and comment
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`rulemaking. They rely on the “good cause” exception to the notice requirement,
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`see 5 U.S.C. § 553(b)(B), and the year-old “emergency” of COVID-19, arguing
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`that it would be “impractical” and “contrary to the public’s health, and by
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`extension the public interest,” to go through proper rulemaking procedures.
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`ECF 1-3 at 19.
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`“[A] mere recital of good cause,” though, “does not create good cause.”
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`Mobil Oil Corp. v. DOE, 610 F.2d 796, 803 (Temp. Emer. Ct. App. 1979).
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`Further, the good-cause exception “is to be narrowly construed and only
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`reluctantly countenanced.” Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C.
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`Cir. 2012). The CDC’s position is that whenever it thinks the APA’s rulemaking
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`procedures are “contrary to the public’s health” then, “by extension,” those
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`procedures also are contrary to the “public interest.” ECF 1-3 at 20–21. But
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`18
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`Case 8:21-cv-00839-SDM-AAS Document 9 Filed 04/22/21 Page 19 of 27 PageID 313
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`
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`that argument proves too much because the CDC’s regulations always address
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`the public health (or at least should).
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`Good cause based on the “impracticalities” of notice and comment also
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`does not exist when the agency has sufficient time to provide notice and
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`comment. See Kollett v. Harris, 619 F.2d 134, 145 (1st Cir. 1980); Regeneron
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`Pharm., Inc. v. HHS, 2020 WL 7778037, at *11–12 (S.D.N.Y. Dec. 30, 2020).
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`So even if the good-cause exception applied in March 2020, it no longer applies
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`in April 2021. Moreover, this exception to notice and comment is supposed to
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`be temporary—meaning the agency should conduct notice and comment after
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`promulgating the rule, which the CDC has not done. See Am. Fed’n of Gov’t
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`Emps. v. Block, 655 F.2d 1153, 1158 (D.C. Cir. 1981).
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`And although the CDC asked the public questions back in July 2020, 85
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`Fed. Reg. 44083, the CDC did not respond or even attempt to address in any
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`meaningful way the answers provided to it. ECF 1-3 at 14–15. This failure
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`suggests the CDC correctly did not view that process as satisfying the APA’s
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`formal notice and comment requirements, and even if it did, the CDC’s failure
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`to respond is fatal. “An agency must consider and respond to significant
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`comments received during the period for public comment.” Perez v. Mortg.
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`Bankers Ass’n, 575 U.S. 92, 96 (2015).
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`Finally, asking the public questions is a far cry from 5 U.S.C. § 553’s
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`mandate to publish notice of “the terms or substance of the proposed rule or a
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`
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`19
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`
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`Case 8:21-cv-00839-SDM-AAS Document 9 Filed 04/22/21 Page 20 of 27 PageID 314
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`
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`description of the subjects and issues involved.” See Nat’l Lifeline, 921 F.3d at
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`1115 (emphasis added). “For notice to be sufficient, the final rule must be ‘a
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`logical outgrowth’ of the proposed rule” so that “the affected party ‘should have
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`anticipated’ the agency’s final course in light of the initial notice.” Id. (citation
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`omitted).
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`b. The Conditional Sailing Order violates the Constitution.
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`Even if Florida’s claims were unreviewable under the APA—and they
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`are not—Florida remains entitled to an injunction. If the Conditional Sailing
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`Order does not exceed the authority under § 264 and the relevant regulations,
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`then § 264 and those regulations constitute an unconstitutional exercise of
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`lawmaking b