Here’s why court may have reversed itself on COVID cruise rules


Sun Sentinel

An appellate court’s mysterious reversal in favor of Gov. Ron DeSantis’ high-profile cruise lawsuit raised suspicions that politics was at work. But that might not have been the case.

The three-member panel of the 11th Circuit Appellate Court has little in common politically, and some legal experts think the judges were simply correcting what they considered their own mistake.

The panel on Friday snatched away a legal victory from the federal Centers for Disease Control and Prevention and delivered it instead to DeSantis’ effort to end the CDC’s authority over the cruise industry.

The panel, which voted 2-1 against DeSantis on July 17, six days later essentially changed its mind and voted 3-0 for DeSantis.

Attorney Paul S. Figg, partner of the Government Regulatory Team based in Berger Singerman’s Fort Lauderdale office, said the two judges who switched their votes may have simply been correcting an error.

Noting that no written opinion accompanied the first ruling, Figg said the change of minds might have happened while the judges were “trying to come to an agreement on a draft of the written opinion to follow; and/or [while] reviewing the draft of the dissenting opinion provided by the dissenting judge.”

“The process of writing an opinion or brief often highlights the flaws in your initial view,” he said.

Michael Winkleman, a Miami-based attorney, said the reversal is “deeply puzzling,” adding, “With no explanation from the court as to why it reversed itself within a week, one can only speculate.”

Among the possibilities, he said, was that the panel member who dissented the first time persuaded the others to change their minds.

At DeSantis direction, the state of Florida sued the CDC in April, arguing that Congress had given it no legal authority to shut down the state’s cruise industry for more than a year. The CDC, by imposing complicated conditions for the resumption of cruising, had caused harm to Florida by keeping thousands of cruise industry employees out of work and denying the state millions in taxes and fees generated by cruising, the lawsuit argued.

On June 18, a U.S. district judge in the case granted a preliminary injunction ending the CDC’s authority because, the judge said, the state had presented evidence that showed it was likely to win its lawsuit. The ruling was to take effect 30 days later, on July 18.

The CDC, meanwhile, appealed to the 11th Circuit, seeking to delay the injunction.

Hours before the injunction was to take effect, the three-member appellate court panel voted 2-1 to prevent the CDC from losing its authority the next day.

Six days later, that same panel changed its mind. On Friday — the same day Florida filed an emergency application with the U.S. Supreme Court to vacate the July 17 ruling — the appellate court panel issued a ruling reversing its previous order.

This time, the decision among the three appellate judges was unanimous: The CDC’s motion to delay the removal of its authority was denied, the order said, “because appellants failed to demonstrate an entitlement to a stay pending [its] appeal..”

What was notable to legal observers about the reversal was the political diversity of the three judges.

Elizabeth Branch, a 2018 appointee of President Trump, and two judges appointed by Democratic presidents — Charles Wilson, appointed by Bill Clinton in 1999, and Jill Pryor, appointed by Barack Obama in 2012 and confirmed to the court in 2014.

Political loyalty to DeSantis, in other words, couldn’t have been the reason for the reversal.

Branch is a longtime Republican who worked in the administration of George W. Bush, belongs to the Federalist Society and was a member of the National Rifle Association for five years. While few of her opinions prior to her nomination to the 11th Circuit shed much light on her views about constitutional law, she raised eyebrows in 2020 with a dissenting view proclaiming that individuals had no right to sue states for violations of the federal Voting Rights Act.

In fact, the right to sue states under the act was enacted by Congress in 1975, and dozens of individuals have successfully challenged their states’ efforts to weaken voting rights laws.

Charles Wilson, whose father was a civil rights lawyer in the 1950s, was confirmed to the court with support from former Republican Sen. Connie Mack III and former Democratic Sen. Bob Graham. He’s seen as a deliberate and thoughtful jurist who doesn’t allow his personal opinions to cloud his legal reasoning when deciding cases.

Pryor, the third judge on the panel, has participated in two rulings upholding transgender students’ rights to use school bathrooms designated for the gender with which they identify.

A Pennsylvania native, Prior earned her law degree from Yale Law School in 1988 and joined the law firm of Bondurant, Mixson & Elmore LLP the following year. She became a partner in 1997. During her time in private practice, she represented both plaintiffs and defendants in civil litigation in state and federal courts at both the trial and appellate level.

For a panel that ruled voted 2-1 to reverse itself, and for the new ruling to be unanimous, that means that two of the three members changed their positions.

Bob Jarvis, a law professor at Nova Southeastern University, found the reversal “inexplicable,” particularly as the number of COVID-19 cases soars in Florida and elsewhere.

What’s particularly odd, he said, is that a 2009 U.S. Supreme Court case cited in both orders deals with which of two standards is to be used to determine requests to delay orders involving deportation of immigrants.

The Supreme Court case, he said, “has no applicability to a stay request in a public health case. Even if it did, [the panel] opted for the more lenient standard and therefore could be said to favor the CDC’s position.”
Figg said of the reversal, “While it is not common for a panel to reverse itself on the same procedural issue, in the circumstances of this case, it is consistent with the workings of an appellate court.”
Figg said he didn’t think that Florida’s request for the Supreme Court to vacate the 11th Circuit’s order played a role, “except perhaps to speed up the court reversal.”
What’s more likely, he said, is that two of the members just realized they were wrong the first time around.
“It is important to remember that judges are committed to getting the issues before them resolved correctly, which means consistent with the law and supported by the record.,” he said. “That means they will never simply rubber-stamp an incorrect decision because it was a decision they made.
“If, in the course of preparing the written opinion, which will stand as precedent, they realize the previous decision was not consistent with the law or supported by the record, they will not hesitate to correct their error.”