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Law360 (May 6, 2021, 8:12 PM EDT) -- In a move to support the cruise industry during the COVID-19 pandemic, Texas has filed a motion to intervene in Florida's suit seeking to block the federal government from enforcing its now yearlong ban on cruises, following Alaska's lead in looking to join the case.
Texas Attorney General Ken Paxton filed the motion Wednesday in Florida federal court, backing up the Sunshine State's case against the U.S. Department of Health and Human Services and the Centers for Disease Control and Prevention. The CDC's series of "no-sailing" or "conditional-sailing" orders have crippled the Texas passenger cruise industry and the many Texas businesses that support it, Paxton said, noting that Galveston is the fourth largest cruise port in the United States.
"The pandemic showed us that the need for stable and predictable law has never been greater. Government policy should not have the ability to destroy industries and eliminate workforces with the stroke of a pen," Paxton said in a statement Thursday. "The cruise industry needs clearly defined expectations for safe operations and protection from baseless COVID-related claims while the country is reaching new vaccination records."
The motion to intervene supports a preliminary and permanent injunction to prevent HHS and the CDC from enforcing an Oct. 30 conditional sailing order that established a four-phase process for cruise lines to reopen. It urges the court to find that the order is unconstitutional and violates the Administrative Procedure Act.
"The conditional sailing order is arbitrary and capricious because it fails to consider less onerous alternatives to a complete lockdown of the cruise industry, such as but not limited to: limits on capacity, testing requirements, sanitation requirements, or other reasonable COVID-19 protocols," according to the motion.
Texas' motion says the federal government's four phases for reopening the cruise industry include tests of crew members for the virus, simulated voyages to assess ship operators' ability to mitigate COVID-19 risk, a certification process and a return to passenger voyages once that risk mitigation is in place.
Paxton's bid to join Florida's suit filed April 8 follows the state of Alaska's pending April 20 motion to intervene in the case in support of Florida. Alaska claims that the CDC's conditional sailing order threatens Alaska's 2021 cruise season.
Florida asked the court on April 22 for a preliminary injunction blocking the CDC's ban on cruise ships due to the COVID-19 pandemic, saying the latest guidance from the agency issued 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."
The federal government on Wednesday opposed Florida's bid for a preliminary injunction, saying the United States remains in the midst of "a once-in-a-century pandemic" that has already killed more than half a million Americans and 3 million people around the world.
"Early in the pandemic, several deadly outbreaks were clustered on cruise ships, like the Diamond Princess in Japan and the Grand Princess in the San Francisco Bay," according to the opposition. "These outbreaks required vast expenditures of government resources to evacuate, quarantine, isolate, house and treat passengers. These experiences demonstrated that cruise ships are uniquely suited to spread COVID-19, likely due to their close quarters for passengers and crew for prolonged periods."
Florida argues that 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 for a preliminary injunction, 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.
Florida's arguments on its likelihood of success largely echoed the allegations in its complaint, which asserts that the CDC's most recent set of restrictions is an unconstitutional exercise of legislative power and violates the Administrative Procedure Act as an arbitrary and capricious agency action by the agency 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."
Press secretary Kayleigh Date of the Texas attorney general's office declined further comment Thursday, saying the filing in the ongoing litigation speaks for itself.
Representatives for Florida and the federal government did not respond immediately to requests for comment.
The state of Florida is represented by Ashley Moody, John Guard, James H. Percival, Jason H. Hilborn and Anita Patel of the Office of the Attorney General of Florida.
The state of Texas is represented by David S. Harvey Jr. of Lewis Brisbois Bisgaard & Smith LLP and Ryan G. Kercher and Kimberly Fuchs of Texas' Office of the Attorney General.
The state of Alaska is represented by Mohammad O. Jazil and Edward Wenger of Hopping Green & Sams PA and Jessica M. Alloway and Lael A. Harrison of the Alaska Department of Law.
The U.S. government is represented by Brian D. Netter, Eric Beckenhauer and Amy E. Powell of the U.S. Department of Justice.
The case is State of Florida v. Becerra et al., case number 8:21-cv-00839, in the U.S. District Court for the Middle District of Florida.
--Editing by Jay Jackson Jr.
For a reprint of this article, please contact reprints@law360.com.
