State, cruise line fight over site of 'passport' challenge
TALLAHASSEE, Fla. - Norwegian Cruise Line Holdings and the state are battling about which court should hear a challenge to the state’s ban on so-called "vaccine passports," with the cruise operator fighting an attempt to move the case out of South Florida.
Miami-based U.S. District Judge Kathleen Williams is scheduled to hear arguments Friday in Norwegian’s request for a preliminary injunction against the vaccine-passport ban, which would prevent the cruise line from requiring customers to show proof of vaccination against COVID-19.
But Gov. Ron DeSantis’ administration last month filed a motion to move the case to the federal Middle District of Florida, where Tampa-based U.S. District Judge Steven Merryday has backed the state in another lawsuit challenging Centers for Disease Control and Prevention restrictions on the cruise-ship industry.
Attorneys for Norwegian fired back Friday, pointing, in part, to the company being headquartered in Miami and planning to start cruises out of Miami on Aug. 15. In a 26-page document, Norwegian said it "attested" to the CDC that at least 95 percent of passengers and crew members leaving from Miami would be fully vaccinated --- a promise that could be jeopardized by the vaccine passport ban.
"It is obvious that Miami (i.e., the Southern District of Florida) is the appropriate forum to adjudicate the legal violations and injuries this defendant (the state) is perpetrating upon NCLH’s (Norwegian Cruise Line Holdings’) vessels and operations based in Miami," the document said. "Indeed, even if this case had been filed elsewhere, the grounds for transferring to Miami would be unanswerable."
The cruise line’s attorneys went further by suggesting that Florida had been "forum shopping" --- essentially trying to find a favorable court --- by filing the earlier case against the CDC in Tampa and trying to move the Norwegian case out of Miami.
"(If) one particular venue were to be deemed suspect, it would be the Middle District," the cruise-line attorneys wrote. "Whereas this (Miami) court is, for irrefutable and irreproachable reasons, a natural choice to resolve this case, Florida’s decision to sue CDC in the Middle District is strongly suggestive (to say the least) of cynical forum shopping. Any notion that equity now commends transfer from this court to the Middle District is upside-down."
But in a July 16 motion for a transfer to the Middle District, DeSantis administration attorneys said the case "presents the same issue that is being litigated" in the state’s lawsuit against the CDC. That issue centers on what is known as a "conditional sailing order" in which the CDC required cruise operators to meet a series of requirements before they could resume cruises after being shut down early in the pandemic.
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Merryday in June issued a preliminary injunction against the restrictions, agreeing with the state that the CDC overstepped its legal authority. The CDC has challenged the injunction at the 11th U.S. Circuit Court of Appeals in Atlanta.
"Plaintiffs’ primary argument is that this order (the CDC’s conditional sailing order) preempts Florida’s law prohibiting businesses from requiring customers to furnish documentation of vaccination against COVID-19," the state’s attorneys wrote. "One of defendant’s (the state’s) primary defenses will be that the order cannot preempt Florida law because the order is unlawful."
DeSantis has made a priority of blocking businesses, including the cruise industry, from requiring proof of vaccinations from customers. He issued an executive order in April preventing the use of vaccine passports, and the Republican-controlled Legislature later passed a bill that put the ban into law.
Norwegian filed the lawsuit July 13 challenging the ban, "after extensive settlement efforts failed," according to Friday’s document. The cruise line has raised a series of constitutional issues in the case, which lists state Surgeon General Scott Rivkees as the named defendant.
"Florida’s ban, by prohibiting NCLH from obtaining vaccination documentation from its passengers, makes it impossible or inordinately difficult for NCLH to satisfy the option created by CDC of resuming sailing in U.S. waters if NCLH can verify that 95% of its crew and 95% of its passengers are fully vaccinated prior to sailing," the lawsuit said.
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But the state’s lawyers wrote in a document last week that other cruise lines met CDC requirements through an option known as conducting "simulated" voyages, which involve testing COVID-19 preparedness. The state alleged that Norwegian could have used that option but didn’t for competitive reasons.
"Norwegian’s case, therefore, is not about public health but rather about a business decision it has made in an apparent attempt to reduce costs and distinguish the company from its competitors, including by promising its passengers that it would be sailing with fully vaccinated ships (not even suggested by any CDC guidance)," the state’s attorneys wrote.