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Law360 (April 22, 2021, 8:02 PM EDT ) The state of Florida asked a federal court on Thursday to immediately block the federal government from enforcing its now yearlong ban on cruises due to the COVID-19 pandemic while the state pursues its recently filed lawsuit looking to knock down the restrictions.
In its 27-page motion for a preliminary injunction, the Sunshine State said the latest guidance from the Centers for Disease Control and Prevention, issued on April 2, is insufficient to allow the industry to take the necessary steps toward reopening and makes clear that the agency "does not intend to proceed with reopening the cruise industry in good faith."
"Without this court's intervention, Florida will lose millions, if not billions, of dollars," the state told the Tampa district court. "And if companies like Carnival follow through on their threat to move operations abroad, the State of Florida may never be the same."
According to the motion, a preliminary injunction would allow about 159,000 Floridians whose livelihoods depend upon the cruise industry to get back to work.
In support of its request, Florida argued that it has made necessary showings that it is likely to succeed on the merits of the case and will suffer irreparable harm without an injunction, adding that court action is in the public interest and that the balance of the parties' hardships favor it.
Gov. Ron DeSantis and Florida Attorney General Ashley Moody announced the legal action during a press conference on April 8 at PortMiami, accompanied by other Florida officials and cruise industry workers but no representatives from the cruise lines. On Tuesday, the state of Alaska filed a motion to intervene in the case in support of Florida, according to court records.
Florida's arguments on its likelihood of success largely echo the allegations in its complaint, which asserts that the CDC's most recent set of restrictions — an Oct. 30 Conditional Sailing Order that established a four-phase process for cruise lines to reopen — is an unconstitutional exercise of legislative power and violates the Administrative Procedure Act as an arbitrary and capricious agency action by the CDC that exceeds its authority.
The motion also says the agency's reasoning was inadequate and that it failed to allow for proper comment, consider lesser alternatives or explain its differentiated treatment of the cruise industry.
"The Conditional Sailing Order also reasons that it is necessary because 'measures taken by state and local health authorities regarding COVID-19 onboard cruise ships are inadequate,' … and that COVID-19 'transmission has not been controlled sufficiently by the cruise ship industry,'" the state said. "The cruise industry has not operated since March 2020. And the order does not even consider measures taken or proposed by Florida, its local governments, or the cruise industry since then."
Florida argues that the CSO is a final agency action that is subject to judicial review, adding that the state has standing to challenge it because economic harm caused by a federal agency action establishes irreparable harm.
In terms of its alleged economic injury, Florida alleges that it has been forced to spend about $20 million in unemployment benefits for former cruise industry workers and that it has also lost tens of millions of dollars in tax revenue from cruise passengers' activities, among other impacts to the broader economy.
The motion briefly addresses the issues of the balance of the equities and public interest, arguing that the two factors merge for federal government action.
It quotes case law that says "forcing federal agencies to comply with the law is undoubtedly in the public interest" and that it is "against the public interest to force a person out of a job."
"The Conditional Sailing Order does just that — for an entire industry," the state said.
Representatives for the CDC and HHS did not immediately respond to requests for comment late Thursday.
The state of Florida is represented by Attorney General Ashley Moody, Chief Deputy Attorney General John Guard, Chief Deputy Solicitor General James H. Percival, Assistant Solicitor General Jason H. Hilborn and Senior Assistant Attorney General Anita Patel.
The state of Alaska is represented by Edward Wenger of Hopping Green & Sams.
Counsel information for the defendants was not immediately available.
The case is State of Florida v. Becerra et al., case number 8:21-cv-839, in the U.S. District Court for the Middle District of Florida.
--Editing by Steven Edelstone.
For a reprint of this article, please contact reprints@law360.com.
