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Appeals court reverses course, lifts CDC cruise COVID-19 safety rules

The zig-zagging court decisions come as cruise companies are trying to restore consumer confidence in cruising.
A man watches as Royal Caribbean International's Freedom of the Seas cruise ship sets off down Government Cut past Miami's South Pointe Park on a simulated voyage from PortMiami on June 20, 2021.
A man watches as Royal Caribbean International's Freedom of the Seas cruise ship sets off down Government Cut past Miami's South Pointe Park on a simulated voyage from PortMiami on June 20, 2021. [ DANIEL A. VARELA | Miami Herald ]
Published Jul. 23
Updated Jul. 24

Three judges on the U.S. Appeals Court for the 11th Circuit on Friday vacated their decision issued last weekend that allowed the U.S. Centers for Disease Control and Prevention to enforce its cruise COVID-19 safety rules in Florida.

Just before the 11th Circuit’s reversal, Florida asked the U.S. Supreme Court to intervene and reverse the appeals court’s decision from last Saturday.

The 11th Circuit judges — Judges Jill Pryor, Charles Wilson and Elizabeth Branch — did not provide an explanation for why they reversed their decision just six days after issuing it, saying only that the federal agency “failed to demonstrate an entitlement to a stay pending appeal.”

“Today, following Florida’s application to the United States Supreme Court, we were excited to see the 11th Circuit Court of Appeals reverse its prior order and free the cruise lines from the unlawful CDC mandates,” Taryn Fenske, spokesperson for Gov. Ron DeSantis, said in an email. “The cruise industry is free to safely set sail again!”

Cruises restarted from Florida ports under the Centers for Disease Control’s regulations last month. Friday’s decision does not impact cruises that leave from other states.

In a statement Friday night, the Centers for Disease Control said ships operating out of Florida will still be required to report illnesses and deaths to the agency. If ships choose not to follow the COVID-19 regulations, now recommendations, the agency will label them “gray” on its color-coding system and they will be required to abide by the federal mask mandate for public transportation.

“CDC remains committed to working with the cruise industry and seaport partners to ensure that the resumption of cruise ship passenger operations are conducted in a way that protects crew members, passengers, and port personnel, particularly with emerging COVID-19 variants of concern,” said agency spokesperson Caitlin Shockey in a statement.

Related: Ron DeSantis pitted against cruise ship industry in battle over COVID restrictions

Larry Gostin, professor of global health law at Georgetown University and director of the World Health Organization’s center on global health law, said the reversal lacks transparency. Gostin previously said Florida’s lawsuit against the federal agency had little to no viability.

“The facts and the law today are exactly the same as the facts and the law several days ago,” said Gostin. “Judges are supposed to make decisions based on the facts and the law. They’re acting like their decision doesn’t matter, and this is a highly consequential case that is a life or death situation.”

Florida first sued the Centers for Disease Control and Prevention in April, asking a federal judge in Tampa to get rid of the agency’s safety rules for cruises operating from Florida ports. The rules require cruise companies to have COVID-19 tests on board, secure evacuation agreements with ports they plan to visit and perform test cruises if they are operating with less than 95 percent of crew and passengers vaccinated against COVID-19, among other things.

Last month, U.S. District Judge Steven Merryday of the Middle District of Florida sided with the state, saying the federal agency did not sufficiently justify the need for its regulations that are causing Florida “economic harm.” He ordered the regulations to turn into recommendations for cruise companies by July 18. The federal agency appealed Merryday’s decision to the 11th Circuit.

At 11:50 p.m. on Saturday, the three-judge panel of 11th Circuit judges sided with the Centers for Disease Control in a 2-1 decision, blocking Merryday’s order and keeping the agency’s regulations in place. The judges’ order said opinions would follow.

But before the judges filed any opinions, they vacated their earlier order. Almost simultaneously, Florida appealed the earlier 11th Circuit decision to the U.S. Supreme Court.

“If the stay is not vacated now, Florida is all but guaranteed to lose yet another summer cruise season while the CDC pursues its appeal,” the state said in its filing.

The zig-zagging court decisions come as cruise companies are trying to restore consumer confidence in cruising, which resumed from U.S. ports in June after a 15-month hiatus. Even with the Centers for Disease Control’s regulations in place, COVID-19 persists on cruise ships. As of Friday, nearly one in four ocean cruise ships in U.S. waters or planning to come into U.S. waters soon had reported a COVID-19 infection to the federal agency in the last seven days.

In a separate pending court case, Norwegian Cruise Line Holdings is suing Florida Surgeon General Scott Rivkees, asking a federal judge in Miami to allow the company to require its passengers to provide proof of COVID-19 vaccination despite a recently passed state law that bars it from doing so. Last week, Norwegian encouraged the 11th Circuit to keep the CDC’s cruise regulations in place.