Sunday, August 08, 2021

Judge Kathy Williams rules for Norwegian and against Gov. DeSantis

 This is a biggie.  You can read the order here. It's a lengthy 59-page order exploring the First Amendment and the Dormant Commerce Clause (looks like Judge Williams and her clerks had a very busy weekend as this was just argued on Friday).  

Here's the intro from the order:

On July 13, 2021, Plaintiffs—Norwegian Cruise Line Holdings Ltd.; NCL (Bahamas) Ltd., d/b/a Norwegian Cruise Line; Seven Seas Cruises S. De R.L., d/b/a Regent Seven Seas Cruises; and Oceania Cruises S. De R.L., d/b/a/ Oceania Cruises (collectively, “Plaintiffs” or “NCLH”)—initiated this action against Dr. Scott Rivkees, the Surgeon General of Florida and the head of the Florida Department of Health (“Defendant”). (DE 1.) After 15 months of suspended operations, NCLH plans to resume passenger cruises from Florida on August 15, 2021 on the Norwegian Gem. (Id. at ¶ 1.) NCLH has adopted a policy requiring all passengers on its vessels to be fully vaccinated against COVID-19 and to provide documentation confirming their vaccination status before boarding. (Id. at ¶¶ 4, 35.)

Plaintiffs assert that a recently-enacted Florida law, codified at Fla. Stat. § 381.00316 (“Section 381.00316” or “the Statute”), prevents them from implementing the vaccination policy for vessels departing from Florida. (Id. at ¶ 122.) Under the Statute, Plaintiffs are prohibited from requiring passengers to provide “any documentation certifying COVID-19 vaccination or post-infection recovery” prior to boarding. Fla. Stat. § 381.00316. NCLH explains that if it cannot maintain its vaccination policy in Florida, it would be forced to either cancel all voyages leaving from the state or allow unvaccinated passengers to sail, and both options would cause significant financial and reputational harms. (DE 3 at 17–19.)

NCLH brings this as-applied constitutional challenge, arguing that the Statute violates its rights under the First Amendment, the dormant Commerce Clause, and Substantive Due Process. (DE 1.) It also claims that the Statute is preempted by the CDC’s Conditional Sailing Order (“CSO”) and subsequent instructions. Plaintiffs have asked the Court to enjoin the enforcement of Section 381.00316 pending resolution on the merits of their claims. Upon a review of the record, and with the benefit of oral argument, the Court finds that Plaintiffs are entitled to a preliminary injunction.

Norwegian was represented by Quinn Emanuel (Derek Shaffer, John O'Sullivan, Olga Vieira, and I'm sure lots of others). 

25 comments:

Anonymous said...

11th circuit will vacate the injunction, this opinion smacks of legislating from the bench.


Retired litigator

Anonymous said...

@8:48, can you explainn how/why you read this opinion as legislating from the bench? Whether you like the outcome or not, it is a thorough analysis applying the required tests for each argument. And unlike "legislating from the bench" opinions, it does not set any new poliicy or impose any new obligation on any party.

Current litigator.

Anonymous said...

So much for freedom. Is this even America.

Anonymous said...

The order is receiving high praise in most quarters. Thanks for making us look good KMW!

Anonymous said...

@10:13 - what a silly comment. Vaccine mandates have been part of the American experience for over 115 years. See Jacobson v. Massachusetts, 197 U.S. 11 (1905).

Plus, I would think a ruling like this one is a big win for actual freedom loving conservatives. Since when have conservatives liked the government telling private business who they must do business with? (recall the baker who wouldn't bake a cake for a gay wedding?).

If someone thinks that a baker shouldn't have to make a wedding cake for a gay couple, but also thinks that Norwegian should be forced to take un-vaccinated customers on cruises (I don't know if that's you, 10:13) either: 1) its time to question whether your positions are consistent; 2) you're a homophobe and you should have the decency to be honest about it; or 3) 1 and 2.

Anonymous said...

What does this have to do with dessert? Weird.

Anonymous said...

cancel culture run amok

Anonymous said...

Seems like DeSantis is a communist, thinking his government can tell business who they can and can't serve. Hypocrite.

Anonymous said...

10:13 and 11:12 are either trolling or have a biased view of freedom. The type of freedom he cries about never existed. Otherwise, schools would not require immunization cards, there would be no seat belt laws, and the "smoke filled room" would still be a thing.

Anonymous said...

How can you truly be free when you have to have your body invaded to get on a boat. Absurd. Check the Constitution!

Anonymous said...

@126 is obviously trolling. Or is not a lawyer. "Check the Constitution." Yes, the oft overlooked "freedom to cruise" enshrined in the Freestyle Cruising Clause of Article 7. lol

Anonymous said...

There should be a new corollary to Godwin's law for references to "cancel culture."

Anonymous said...

Life liberty and the pursuit oh happiness. How can a person be happy if forced to get an injunction against his will? Nanny state.

Anonymous said...

@246 "Life liberty and the pursuit o[f] happiness" is not in the Constitution. LOL.

Plus, and again, vaccine mandates have been part of the American experience since (probably) before your grandparents were born. The Supreme Court found them constitutional in 1905. To go to school, you and your children had to be vaccinated. Vaccines are, from a legal point of view, no more controversial than no-smoking laws or shoes and shirt requirements.

This whole debate is foolishness. It is downright laughable. And if 126/246 is not just having a laugh of his/her own, this is pretty sad.

Anonymous said...

Canceling 2:42

Anonymous said...

What else was "constitutional" in 1905?

And this: "Vaccines are, from a legal point of view, no more controversial than no-smoking laws or shoes and shirt requirements." Injecting an "emergency" drug into your blood is the same as putting a flip flops before you go into Denny's? C'mon counselor your better than that.

Anonymous said...

406:

You're right, shoes and shirts requirements are MORE controversial than vaccine requirements. There is really little or no compelling state interest in shoes and shirts. You really have no idea what you are talking about.

Of course, that's not even really the question because talking about "compelling state interest" presumes state action in requiring a vaccine. What we are talking about here is a private company's right to do business as it sees fit.

In a free society, such as this one is supposed to be, unless I am discriminating against you as a result of your membership in a protected class, I CAN discriminate against you. The traditional protected classes being race, color, religion, sex, national origin, national origin, age, disability, veteran status, and citizenship (other lawyers, did I miss any?).

Discrimination has a dirty feel in today's society because we use it as short hand for "discrimination against a protected class." But that's not really what it means. It just means to treat someone differently. For example, if I have a business, I certainly have the right to discriminate against people based on whether I perceive them to be clean or well dressed, or to follow my standards of hygiene, or even just because I don't like their ugly face. There is no protected class of the sloppy or unwashed.

Non-vaccination status has never been a protected class in this country - not ever. In fact, quite the opposite. Everyday across this country, private and public schools tell parents of small children that if their kids aren't vaccinated against a host of conditions, that the children will not be allowed to attend school.

And returning to government action, and compelling interests - ever see that circular scar on older people (or immigrants)? Those are scars from compulsory small pox vaccines. We were forcing those on people until at least the 1970s - over 70 years!

On the one hand, I want to help you understand. On the other hand, I can't believe that I am wasting my time. The school system failed you and I can't fix that in the comments section of a blog.

Anonymous said...

@ 10:04

the Court denied a motion to transfer venue I believe, the 11 circuit could reverse on this point and not reach the merits of the appeal. But more importantly, the Court unilaterally declared F.S. 381.00316 void on its face and unenforceable.

It is presumed our legislature does not draft, vote and then pass laws that are void and unenforceable.

The Court went through a series of legal gymnastics rarely seen to arrive at the First Amendment holding, same for the commerce clause holding, to strike down the statute.

This led to my statement "this opinion smacks of legislating from the bench".

I am confident the 11 Circuit will vacate this decision.



Retired litigator

Anonymous said...

Black people are largely banned from cruises...that is illegal.

Anonymous said...

7:58 thanks for replying, I was worrying the genuine question would get lost in the sea of comments. Could you please point me towards the part of the opinion where she declared the law “void and unenforceable?” An injunction pending further litigation is not a declaration that the law is void. And yes, we presume laws are valid, but… sometimes they aren’t. That’s part of the court’s job, to opine on constitutionality of laws.

Anonymous said...

"Litigator" = "scared to go to court"

Anonymous said...

@9:40

Macho man

Anonymous said...

Who were the attorneys --- by name --- for the Gov?

Rumpole said...

24 comments. Not bad. Try attacking an American Icon next time and see what you get.

Anonymous said...

Rumpole is so thirsty its embarrassing