Texas and Alaska Join Florida Lawsuit Against the CDC

In early April 2021, Florida Governor Ron DeSantis sued the U.S. Department of Health and Human Services and the Centers for Disease Control and Prevention (CDC) seeking to enjoin the federal government from enforcing the CDC’s operating restrictions on cruise ships, specifically for the purpose of accelerating the cruise industry’s domestic reopening. The complaint, filed in federal district court in Tampa, Florida, asks the court to set aside the CDC’s “unlawful actions” and permit cruise ships to operate with reasonable safety protocols. As Florida notes in its complaint, the state stands to lose billions of dollars and thousands of jobs due to the CDC restrictions imposed on the cruise industry.

On April 20, Alaska Governor Mike Dunleavy filed a motion to join Florida’s lawsuit, claiming Alaska had already lost around $90.3 million in tourism profits in 2020 and stands to lose even more if the cruise industry remains shut down for the 2021 season. Nearly two weeks later, Texas Attorney General Ken Paxton filed a similar motion, claiming the CDC’s orders have crippled the Texas cruise industry as well. The motion highlights that Galveston, Texas is the U.S.’s fourth largest cruise port, and also claims that the Lone Star State’s cruise industry has suffered more than twenty-thousand job losses and $1.5 billion in lost wages as a result of COVID.

At the outset of the pandemic in mid-March 2020, the CDC issued a No Sail Order suspending passenger operations on board cruise ships sailing out of U.S. ports, effectively shutting down the cruise industry. In October 2020, the CDC replaced the No Sail Order with a Conditional Sailing Order (CSO) that announced a four-phase process that cruise lines must follow before resuming sailing activities. On April 2, 2021, the CDC issued additional guidance regarding the CSO. The CSO requires cruise operators to obtain permission from the CDC before reopening; to date no cruise line has successfully received full approval to sail again.

Florida claims the CDC’s recent guidance makes it clear that the agency “does not intend to proceed with reopening the cruise industry in good faith” and that the guidance is inadequate to allow the cruise industry to take the necessary steps toward reopening. Florida is asking the court to issue an injunction to prevent the government—the CDC in particular—from enforcing the CSO, as well as a declaration that the order is unconstitutional and a violation of the Administrative Procedure Act (APA). Moreover, Florida claims it has suffered irreparable financial injury by paying millions of dollars in unemployment benefits to former cruise industry employees and losing millions in tax revenue and port fees. Florida’s complaint further asserts that the CDC lacks the authority to issue year-and-a-half-long nationwide lockdowns of entire industries like the cruise industry and, even if the CDC does have such authority, its actions in this particular situation are arbitrary and capricious and otherwise violate the APA.

In its motion to intervene, Texas added to Florida’s arguments by claiming that the CSO was arbitrary and capricious because it failed to consider “less onerous alternatives to a complete lock down of the cruise industry, such as but not limited to: limits on capacity, testing requirements, sanitation requirements […].” Moreover, Texas pointed out the order failed to contemplate the mitigation strategies put in effect by the cruise industry or the successes of such strategies on cruises in foreign markets that are permitting cruises to sail again.

In response to the states’ claims, the federal government argued that the cruise ship industry is uniquely problematic in light of conditions aboard ships that exacerbate transmission compared to other industries—even with vaccines. Moreover, the government argued the threat of additional COVID-19 outbreaks while on board cruise lines “decisively outweighs any economic injury to [Florida.]”

The parties appeared in federal district court on May 12 to make their arguments regarding Florida’s motion for a preliminary injunction. Although the judge did not indicate a timeline for his decision, the case—and thus the cruise industry’s ability to reopen—are expected to be decided soon.