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[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
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No. 21-12729 ____________________
NORWEGIAN CRUISE LINE HOLDINGS LTD, a Bermuda Company, NCL (BAHAMAS), LTD., a Bermuda Company agent of Norwegian Cruise Line, SEVEN SEAS CRUISES S. DE R.L. LLC, d.b.a. Regent Seven Seas Cruises, OCEANIA CRUISES S. DE R.L., d.b.a. Oceania Cruises, Plaintiffs-Appellees, versus STATE SURGEON GENERAL, Florida Department of Health, in his official capacity,
Defendant-Appellant. USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 2 of 27
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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:21-cv-22492-KMW ____________________
Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and BRASHER, Circuit Judges. WILLIAM PRYOR, Chief Judge: We must consider whether this appeal of a preliminary in- junction is moot. Norwegian Cruise Lines Ltd. obtained the injunc- tion barring the Florida Surgeon General from enforcing a prohibi- tion against businesses requiring proof of vaccination as a condition of service. But Norwegian recently filed a suggestion of mootness stating that it no longer requires proof of vaccinations on its cruises. Yet, Norwegian’s filings make clear that it has not suspended its vaccination requirements permanently or categorically. It also con- tinues to defend its entitlement to equitable relief by asking us to leave the preliminary injunction intact. Based on these filings, Nor- wegian has not met its heavy burden of establishing that this appeal is moot. I. BACKGROUND In July 2021, Norwegian challenged the enforcement of a Florida law prohibiting any business operating in the state from “requir[ing] patrons or customers to provide any documentation USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 3 of 27
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certifying COVID-19 vaccination.” FLA. STAT. § 381.00316(1). See generally Norwegian Cruise Line Holdings Ltd. v. State Surgeon Gen., 50 F.4th 1126 (11th Cir. 2022). Norwegian argued that the state statute violated the First Amendment and Dormant Com- merce Clause. And it moved to enjoin the Surgeon General from enforcing the statute against Norwegian and to obtain a “declara- tion that [the statute] is unlawful as applied to” Norwegian. The district court preliminarily enjoined the Surgeon Gen- eral “from enforcing [the statute] against [Norwegian] pending res- olution of the merits of this case.” Florida appealed, and Norwegian defended the preliminary injunction. We heard oral argument in May 2022. On October 4, Norwegian filed a “suggestion of mootness,” which we construed as a motion to dismiss the appeal as moot. Norwegian simultaneously filed a motion for an indicative ruling in the district court to lift the preliminary injunction. Norwegian maintained that it had “remov[ed] all COVID-19 testing, masking and vaccination requirements for its cruises.” (Citation and internal quotation marks omitted). As a result, Norwegian argued that the appeal was “likely moot.” Florida responded and opposed Norwe- gian’s suggestion of mootness. On October 6, we issued a pub- lished opinion vacating the preliminary injunction on the merits. See Norwegian, 50 F.4th at 1130. We withheld the mandate and requested supplemental briefing on whether the appeal was moot. Norwegian continued to argue that the appeal is moot. It stated that the “dissipation of the COVID-19 pandemic” had USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 4 of 27
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allowed it to “relax[] . . . [its] institutional protocols” and remove its vaccination requirements. It argued that these “changed circum- stances” ended a “live controversy” between the parties. Norwe- gian acknowledged that its revised policy “does not supersede country specific requirements,” meaning that should a country re- impose a vaccine mandate, Norwegian would too. But it main- tained that “no country-specific requirements have implicated any cruises departing from Florida.” In its supplemental briefing, Norwegian abandoned its sug- gestion that the preliminary injunction should be lifted. Norwegian instead argued that the preliminary injunction should remain in place. Norwegian stated that “[t]his appeal should be dismissed without vacating the district court’s order.” (Emphasis added) It doubled down on that position in its reply brief by maintaining that we should leave the preliminary injunction “undisturbed.” And Norwegian has never moved to dismiss the underlying case. Alt- hough Norwegian has argued that this appeal is moot and should be dismissed, Norwegian has not moved to dismiss the action. The Surgeon General responded that the appeal is not moot. He argued that “Norwegian has not entirely rescinded its vaccina- tion documentation policy” because Norwegian “g[ave] no assur- ances that [it] will not reimplement the policy with full force” and its removal of the vaccination requirements was “not categorical.” The Surgeon General pointed out that Norwegian still maintained the authority to “den[y] boarding if all country specific require- ments are not met.” He also argued that Norwegian, “[a]s the USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 5 of 27
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prevailing party in the district court, [could not] voluntarily rescind its offending policy to moot [the] appeal” and preserve the judg- ment in its favor below. II. DISCUSSION This dispute concerns the “constitutional command that the federal judiciary hear only ‘Cases’ and ‘Controversies.’” Vital Pharms., Inc. v. Alfieri, 23 F.4th 1282, 1288 (11th Cir. 2022) (quot- ing U.S. CONST. art. III, § 2). “[B]ecause a case or controversy must exist throughout all stages of litigation, we must ensure—up until the moment our mandate issues—that intervening events have not mooted the appeal . . . .” Id. (internal quotation marks and citations omitted). “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues pre- sented are no longer live or the parties lack a legally cognizable in- terest in the outcome.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)). The “party seeking dismissal,” World Wide Supply OU v. Quail Cruises Ship Mgmt., 802 F.3d 1255, 1259 (11th Cir. 2015) (internal quota- tions omitted), bears the “heavy” “burden” of establishing moot- ness, Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). For the following reasons, Norwegian has not met that heavy burden. We agree with the Surgeon General that a “live dispute” ex- ists because Norwegian has not established that it has relaxed its vaccination requirements permanently or categorically. “The pos- sibility that [a party] may change its mind in the future is sufficient to preclude a finding of mootness.” United States v. Generix Drug USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 6 of 27
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Corp., 460 U.S. 453, 456 n.6 (1983). Norwegian has offered no evi- dence of its vaccine policies or its intentions for the future beyond the boilerplate statement that it is not requiring COVID-19 vac- cination “for now and for the foreseeable future.” Indeed, Norwe- gian appears to concede that it “has not ‘abolished its policy forev- ermore.’” We see no reason to believe that Norwegian will not seek to reinstate its policy given its continued insistence that the Florida law is unconstitutional. See Jager v. Douglas Cnty. Sch. Dist., 862 F.2d 824, 833–34 (11th Cir. 1989) (finding no mootness when defendants “never promised not to resume the prior prac- tice” and “continue[d] to press on appeal that the voluntarily ceased conduct should be declared constitutional”). For all we know, with COVID-19 cases currently rising, Norwegian may do so. Norwegian’s removal of its vaccination requirements is also not categorical, which reduces the likelihood that its protocols have been permanently changed. As the Surgeon General argues, and Norwegian concedes, the revised policy “does not supersede country specific requirements.” Norwegian will defer to other countries as to whether proof certifying COVID-19 vaccination is required on its cruises—a decision outside its control. We have held that an appeal is not moot where the defend- ant might exercise its “discretion to change its policy” back while continuing to press the old policy’s validity. ACLU v. Fla. Bar, 999 F.2d 1486, 1494–95 (11th Cir. 1993). So it is here. Given that Nor- wegian has acknowledged that it must change its vaccine protocols to accommodate “country specific requirements,” it has necessarily USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 7 of 27
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asserted discretion to reimpose its vaccination requirements. Only one country that Norwegian visits needs to require vaccines for it to do so. Given the rapidly shifting nature of the pandemic, Nor- wegian has not persuaded us that it is an “exceedingly remote” pos- sibility that some countries—and, thus, Norwegian—will reimpose vaccine requirements. Norwegian’s filings establish that the appeal is not moot. Norwegian has never argued that the case itself is moot. That is, Norwegian has not expressed any intent to dismiss the action were we to remand. Norwegian has had multiple opportunities to clarify its position. After Norwegian stated in its “suggestion of mootness” that it would move to lift the stay, we asked the parties for supple- mental briefing. Norwegian told us in both of its supplemental briefs that the preliminary injunction should not be vacated. Nor- wegian stated that the injunction should be left “undisturbed.” Cf. Frank v. Minn. Newspaper Ass’n, Inc., 490 U.S. 225, 227 (1989) (finding an appeal moot when “appellee, the original plaintiff in the case, state[d] its willingness to forego any further claim to the de- claratory and equitable relief sought in its complaint”). We take Norwegian at its word. How can it be that a case Norwegian does not want dis- missed involving a preliminary injunction that Norwegian does not want vacated is moot? Norwegian has offered no explanation for this position. The most plausible one is that Norwegian believes there is a reasonable chance it will reinstate its vaccination policy and benefit from the preliminary injunction. USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 8 of 27
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Our dissenting colleague maintains that the appeal is moot because Norwegian told the district court “that the preliminary in- junction should now be lifted.” Dissenting Op. at 12; see also Dis- senting Op. at 6–7. But the district court denied Norwegian’s mo- tion in the light of our decision on the merits. After all, this matter was on appeal and there had been no docket activity in the district court since October 2021. When the district court denied Norwe- gian’s motion for an indicative ruling, Norwegian could have asked us to vacate the preliminary injunction. It did the opposite. It sug- gested we should leave the preliminary injunction “undisturbed.” For similar reasons, even if Norwegian’s conduct otherwise met the criteria for mootness, the voluntary cessation exception to mootness applies. A case is moot when “there is no reasonable ex- pectation that the wrong will be repeated.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (citation omitted). So, the “[m]ere voluntary cessation of allegedly illegal conduct does not moot a case.” Troiano v. Supervisor of Elections, 382 F.3d 1276, 1282 (11th Cir. 2004) (citation omitted). If it did, parties could evade our juris- diction and remain “free to return to [their] old ways.” Id. at 1282– 83 (citation omitted). To moot an appeal, the party that voluntarily ceased the challenged conduct must make it “absolutely clear that the . . . behavior could not reasonably be expected to recur.” United States v. Concentrated Phosphate Exp. Ass’n., Inc., 393 U.S. 199, 203 (1968); see also City of Erie, 529 U.S. at 288. Otherwise, the appeal is not moot. USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 9 of 27
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Norwegian has not established that it is “absolutely clear” that it will not reimpose the vaccine protocols on its cruises. Con- centrated Phosphate Export Ass’n, 393 U.S. at 203. Norwegian has not permanently abolished the challenged policy and maintains the discretion to reinstate it at the whims of various destination coun- tries. Norwegian continues to insist that its vaccination require- ments were valid. Jager, 862 F.2d at 833–34. And it adopts the highly unusual position that the preliminary injunction should con- tinue to bind the Surgeon General, while never suggesting that the action should be dismissed. These filings do not make it “absolutely clear” that Norwegian will not reimpose a vaccine requirement on its cruises. If anything, they suggest the opposite inference. Norwegian and the dissent resist this conclusion by suggest- ing that the voluntary cessation exception does not apply to plain- tiffs in these circumstances. Dissenting Op. at 9. Not so. In City of Erie v. Pap’s A.M., the Supreme Court held that a case was not moot based on the plaintiff’s cessation of its challenged conduct. 529 U.S. at 288. There, a business challenged the constitutionality of a municipal ordinance banning public nudity and obtained an injunction against its enforcement. Id. at 283–86. But after the Su- preme Court granted certiorari, the business moved to dismiss the case as moot and submitted an affidavit that it was no longer oper- ating as a nude dancing club. Id. at 287. The Supreme Court denied the motion. Id. The Supreme Court acknowledged that “this [was] not a run of the mill voluntary cessation case,” because it was the “plaintiff USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 10 of 27
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who, having prevailed below, now seeks to have the case declared moot.” Id. at 288. But the Supreme Court concluded that the ap- peal was not moot under the voluntary cessation exception. It held that—although the business no longer existed, its building had been sold to a real estate developer, and the 72-year-old owner swore that he had no interest in reopening the business—the busi- ness had not established that it was “absolutely clear” that it would not “resum[e] operations.” Id.; see also id. at 302–03 (Scalia, J., con- curring in the judgment). The Supreme Court concluded that the business maintained “a concrete stake in the outcome of this case because, to the extent [the business] ha[d] an interest in resuming operations, it ha[d] an interest in preserving the judgment of the [court below].” Id. at 288. The Supreme Court also held that “[t]he city ha[d] an ongoing injury because it [wa]s barred from enforc- ing” its ordinance due to the injunction. Id. At least one of our sister circuits has applied the City of Erie framework and found an appeal not moot, even when the plaintiff voluntarily ceased the challenged conduct. In Borden v. School Dis- trict of the Township of East Brunswick, a high school football coach sued the local school district and sought a declaration that the district’s policy prohibiting faculty participation in student-ini- tiated prayer was unconstitutional. 523 F.3d 153, 158–59 (3d Cir. 2008). The district court sided with the coach and entered judg- ment in his favor. Id. at 164. On appeal, the coach argued that the case became moot because he “only sought relief for the 2006 USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 11 of 27
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season” and “his coaching contract [wa]s subject to annual re- newal.” Id. at 164 n.6. The Third Circuit disagreed. Citing City of Erie, the Third Circuit concluded that the ap- peal “contains the factors necessary to warrant a finding that it is not moot.” Id. First, because the coach was a tenured teacher who had been rehired for the previous twenty-five years, the Third Cir- cuit concluded that he had not made it absolutely clear that he would cease the challenged conduct. Id. The coach “continue[d] to have an interest in the . . . case.” Id. Second, the school district had an “ongoing injury” because the district court had issued a declar- atory judgment invalidating the school district’s policy. Id. The Third Circuit concluded the case was not moot. Id. This case also contains both elements necessary to find that it is not moot. Because Norwegian has not established that it is “ab- solutely clear” that it will not reimpose the vaccine protocols on its cruises, Norwegian has “a concrete stake in the outcome of this case.” City of Erie, 529 U.S. at 288. In the event Norwegian requires passengers on its cruises to present documentation of their vaccina- tion status, it “has an interest in preserving the judgment of the” district court. Id. Reflecting this “interest,” Norwegian continues to defend its entitlement to equitable relief. The Surgeon General also has an ongoing injury. Because Norwegian has not “forgo[ne] . . . [its] claim to the declaratory and equitable relief,” Frank, 490 U.S. at 227, the Surgeon General cannot enforce the state statute against Norwegian and is “under the weight of an adverse judgment,” City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 12 of 27
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(2001). Both sides have the requisite interest to bar a finding of mootness. The voluntary cessation doctrine is designed to “prevent[] litigants from attempting to manipulate the Court’s jurisdiction to insulate a favorable decision from review.” City of Erie, 529 U.S. at 288. Ordinarily, defendants have this incentive. If not for the vol- untary cessation doctrine, defendants could promise to stop the challenged practice, moot the case, and then “return to [their] old ways.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (citation omitted). But, as City of Erie illustrates, in cases in which the plaintiff obtains an injunction against a defendant, the roles reverse on appeal. With an injunction in place, the plaintiff has the incentive to temporarily cease its prac- tice to moot the appeal and leave the injunction intact, before re- turning to its “old ways.” Id. This appeal presents a textbook application of that strategy. With the case on the eve of decision, Norwegian told us it will stop requiring passengers to present proof of their vaccination status and filed a suggestion of mootness. But it continues to defend the preliminary injunction on the merits and asks us to leave it intact. All the while, it maintains the discretion to reimpose vaccine re- quirements. Norwegian, in short, has done little—certainly far less than the business in City of Erie—to convince us that it is abso- lutely clear that it will not reimpose its vaccine requirements. As a result, we conclude that the appeal is not moot. USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 13 of 27
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III. CONCLUSION We DENY the motion to dismiss the appeal as moot. USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 14 of 27
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ROSENBAUM, Circuit Judge, dissenting: An appeal is moot when an appellate court cannot award the prevailing party any meaningful relief. This is an appeal from an order preliminarily enjoining Florida from enforcing Florida Stat- ute § 381.00316(1), which prohibits businesses from requiring their customers to present proof of vaccination, against Norwegian.1 But two days before we issued our opinion in this appeal, Norwe- gian asked the district court to lift the preliminary injunction. As a result, we could no longer award either party meaningful relief, and this appeal was moot before our opinion issued. The Majority Opinion’s contrary conclusion depends en- tirely on smoke and mirrors. Although the Majority Opinion in- sists that Norwegian wishes for the preliminary injunction to “re- main in place,” Maj. Op. at 4, Norwegian told the district court “that the preliminary injunction should now be lifted.” ECF No. 53 ¶ 5. And while the Majority Opinion now characterizes Norwe- gian’s vaccine policy as “the challenged policy,” Maj. Op. at 9, Nor- wegian was the plaintiff here, and it’s difficult to imagine how it could make a constitutional challenge to its own policy. Indeed, the Majority Opinion addressing the merits in this appeal previ- ously conceded that Florida’s statute (not Norwegian’s vaccine
1 I use “Norwegian” to refer collectively to the plaintiff-appellants: 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 Oceana Cruises S. De R.L., d/b/a Oceana Cruises. USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 15 of 27
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policy) is the challenged practice in this case. See Norwegian Cruise Line Holdings Ltd. v. State Surgeon Gen., 50 F.4th 1126, 1130 (11th Cir. 2022) (Pryor, C.J.) (“This appeal concerns whether a Florida statute . . . violates the Free Speech and Commerce Clauses of the Constitution.”). When we dispense with the Majority Opinion’s counterfac- tual, the mootness analysis in this case is simple: Once Norwegian asked the district court to lift the preliminary injunction, our Court could no longer award Florida any relief. Indeed, the only relief we ever could have awarded Florida in this appeal was an order vacat- ing the district court’s preliminary injunction. And if we did that and Norwegian later reimposed its vaccine policy, the company would face fines under Florida Statute § 381.00316(4)—just like it would if it reinstituted its vaccine policy after the district court lifted the preliminary injunction in accordance with Norwegian’s request. So any decision on the merits of this appeal cannot affect the litigants’ rights. “That kind of advisory opinion is beyond the power of federal courts.” Jacobson v. Fla. Sec’y of State, 974 F.3d 1236, 1269 (11th Cir. 2020) (Pryor, C.J.). Insisting that this appeal is not moot, the Majority Opinion asserts that Norwegian “has not suspended its vaccination require- ments permanently or categorically.” Maj. Op. at 2; see also id. at 5. But that assertion is a red herring. In this case, where all that is at issue is the constitutionality of Florida’s statute, we cannot grant Florida relief by requiring Norwegian to suspend its vaccination re- quirements permanently or categorically. So whether Norwegian USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 16 of 27
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might later reimpose its vaccine policy is therefore irrelevant to the mootness analysis. It is equally irrelevant to the question of whether this appeal is moot that Norwegian urged us to address the second-order ques- tion—whether, if this appeal is moot, we should vacate the district court’s preliminary-injunction order—by declining to vacate the district court’s order. The question of whether an appeal is moot is separate and distinct from the question of whether, when an ap- peal is moot, the district court’s order should be vacated. When interlocutory appeals (like this one) become moot be- fore we can rule on them, our “usual practice is just to dismiss the appeal as moot and not vacate the order appealed from.” Demo- cratic Exec. Comm. of Fla. v. Nat’l Republican Senatorial Comm., 950 F.3d 790, 795 (11th Cir. 2020) (quoting Brooks v. Ga. State Bd. of Elections, 59 F.3d 1114, 1122 (11th Cir. 1995)). So it’s no surprise that Norwegian has asked us to follow that course here. And as in other appeals from interlocutory orders that have become moot before we can rule on them, Norwegian’s argument about vacatur doesn’t mean, contrary to the Majority Opinion’s suggestion, that Norwegian wants the preliminary injunction to remain in place. Rather, Norwegian is simply asking us not to vacate the order that previously imposed the preliminary injunction, which Norwegian has since asked the district court to lift. That said, vacatur is an equitable remedy, meaning the deci- sion whether to vacate turns on the circumstances in each case. Because Norwegian mooted this appeal unilaterally—i.e., by USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 17 of 27
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asking the district court to lift the preliminary injunction—after prevailing in the district court, Supreme Court precedent requires us to vacate the district court’s opinion. Therefore, I would both find that this appeal is moot and vacate the district court’s opinion. Because the Majority Opinion’s conclusion to the contrary eviscerates this Court’s Article III jurisprudence, I respectfully urge the Court to rehear this matter en banc. I.
This lawsuit arose when Norwegian sued Florida, seeking a declaration that Florida Statute § 381.00316 is unlawful and an in- junction preventing Florida from enforcing that law against Nor- wegian. The district court granted Norwegian’s motion for a pre- liminary injunction, enjoining Florida from “enforcing Section 381.00316 against [Norwegian] pending the resolution of the merits of this case.” Norwegian Cruise Line Holdings, Ltd. v. Rivkees, 553 F. Supp. 3d 1143, 1180 (S.D. Fla. 2021). Florida then appealed. On October 3, 2022, NCL “remov[ed] all COVID-19 testing, masking and vaccination requirements effective Oct. 4, 2022.” 2 The next day, Norwegian filed a motion for an indicative ruling in
2 Press Release, Norwegian Cruise Line, Norwegian Cruise Line to Eliminate COVID-19 Testing, Masking and Vaccination Requirements Beginning Oct. 4, 2022 (Oct. 3, 2022), https://www.ncl.com/newsroom/norwegian-cruise- line-to-eliminate-covid-19-testing-masking-and-vaccination-requirements-be- ginning-oct-4-2022. USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 18 of 27
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the district court, 3 asking the district court to lift its preliminary injunction. ECF No. 53. In that motion, Norwegian explained that the district court “preliminarily enjoined a statute that prohibits a business practice that NCL[] is no longer engaging in, for now and the foreseeable future.” Id. ¶ 5. On the same day, Norwegian filed a “suggestion of mootness” in this Court, which we construed as a motion to dismiss the appeal as moot. But two days after NCL filed its motion asking the district court to lift the preliminary injunction, we issued a published opin- ion vacating the preliminary injunction on the merits. See Norwe- gian Cruise Line Holdings Ltd., 50 F.4th at 1126. We then withheld the mandate and asked the parties to submit briefs addressing whether this appeal was moot when our opinion issued. II.
3 When a litigant moves in the district court while “an appeal” is “docketed and is pending,” Federal Rule of Civil Procedure 62.1(a)(3) authorizes a district court to issue an indicative ruling, stating “that it would grant the motion if the court of appeals remands for that purpose . . . .” When a district court “states that it would grant” such a motion, the Federal Rules of Appellate Pro- cedure permit a court of appeals “to remand for further proceedings” while retaining jurisdiction over the appeal. FED. R. APP. P. 12.1(b); see also Carver Middle Sch. Gay-Straight All. v. Sch. Bd. of Lake Cnty., 842 F.3d 1324, 1331 (11th Cir. 2016) (W. Pryor, J.) (“When an appeal presents a contested issue of mootness, we have allowed the district court the opportunity to address that issue first.”). USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 19 of 27
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The Constitution limits the power of federal courts to decid- ing only “[c]ases” and “[c]ontroversies.” U.S. Const. art. III, § 2. That limit on our power “goes to the heart of our constitutional doctrine of the separation of powers and the proper role of the ju- diciary.” Djadju v. Vega, 32 F.4th 1102, 1108 (11th Cir. 2022) (quot- ing Troiano v. Supervisor of Elections, 382 F.3d 1276, 1282 (11th Cir. 2004)). Among the rules that enforce that limit on our power is the doctrine of mootness. Id. The doctrine of “mootness concerns the availability of re- lief,” Wood v. Raffensperger, 981 F.3d 1307, 1317 (11th Cir. 2020) (Pryor, C.J.) (citation omitted), meaning that an issue becomes moot when “it no longer presents a live controversy with respect to which the court can give meaningful relief.” Id. at 1316 (quoting Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1189 (11th Cir. 2011)); see also, e.g., Chafin v. Chafin, 568 U.S. 165, 172 (2013) (explaining that a case becomes moot “when it is impossible for a court to grant any effectual relief whatever to the prevailing party” (quoting Knox v. Serv. Emps., 567 U.S. 298, 307 (2012))); Djadju, 32 F.4th at 1108 (explaining that an appeal becomes moot when the court cannot grant an “appellant meaningful relief” (quoting Troiano, 382 F.3d at 1282)). This appeal is moot because we are unable to grant either party any relief. After the district court preliminarily enjoined Flor- ida from enforcing Section 381.00316 against Norwegian, Florida appealed, seeking relief in the form of an order from this Court va- cating the district court’s order and permitting Florida to enforce USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 20 of 27
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its law against Norwegian. But Norwegian asked the district court to lift the preliminary injunction while Florida’s appeal was pend- ing before us. ECF No. 53. And from that point forward, assuming the district court would have granted Norwegian’s request and lifted the preliminary injunction, 4 Florida could have enforced its law against Norwegian. So once Norwegian asked the district court to lift the preliminary injunction, this appeal stopped present- ing a “live controversy with respect to which” this Court could have “give[n] meaningful relief.” Wood, 981 F.3d at 1316. Even granting the Majority Opinion’s speculation that Nor- wegian “has not suspended its vaccination requirements perma- nently or categorically,” Maj. Op. at 2; see also id. at 5, that fact says nothing about whether this appeal is moot. We can award no relief in this appeal that will prevent Florida from “permanently or cate- gorically” suspending its vaccine requirements. This appeal only ever presented us with a binary choice for relief: Either affirm the district court’s preliminary injunction, thus enjoining Florida from enforcing its law against Norwegian, or vacate the district court’s preliminary injunction, thus allowing Florida to enforce its law
4 To the extent that this assumption is contestable, the appropriate step is to “remand to the district court” and permit it to rule on Norwegian’s request to lift the preliminary injunction. Carver Middle Sch. Gay-Straight All., 842 F.3d at 1331 (W. Pryor, J.) (“When an appeal presents a contested issue of moot- ness, we have allowed the district court the opportunity to address that issue first.”); see also infra n.3. USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 21 of 27
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against Norwegian. Neither choice would require Norwegian to “permanently or categorically” suspend its vaccine requirements. To be sure, Norwegian would face fines under Section 381.00316(4) if we reversed the district court’s preliminary injunc- tion and Norwegian later reimposed its vaccine policy. But as I’ve noted, the result would be the same once the district court granted Norwegian’s request to lift the preliminary injunction. ECF No. 53. And even if we affirmed the district court’s preliminary injunc- tion, the result would still be the same because, again, Norwegian has asked the district court to lift the preliminary injunction. In short, “a decision by this court affirming or vacating the defunct injunction cannot affect the rights of the litigants.” Vital Pharms., Inc. v. Alfieri, 23 F.4th 1282, 1289 (11th Cir. 2022) (Pryor, C.J.) (quoting United States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1223, 1229 (11th Cir. 2015)). So a decision either way would be purely advisory. It’s no response at all to say, as the Majority Opinion does, that “the district court denied Norwegian’s request to lift the pre- liminary injunction in light of our decision on the merits.” Maj. Op. at 8. For starters, the district court denied the motion for in- dicative ruling solely because we issued our opinion.5 See ECF No. 55. Not only that but the Majority Opinion’s response merely begs
5 So to state the obvious, the district court’s order leaves no basis for conclud- ing that the district court would have denied Norwegian’s motion for indica- tive ruling on the merits. USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 22 of 27
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the question because it assumes we can resurrect an appeal that is otherwise moot by issuing an opinion addressing the appeal’s mer- its. Worse still, that response concedes that this appeal was moot when our opinion issued. And it posits that the appeal suddenly awoke from the dead like some type of zombie eight days later, when the district court denied Norwegian’s request to lift the pre- liminary injunction as moot because our merits decision rendered the motion moot. This type of circular reasoning cannot provide jurisdiction where none exists. Nor does the voluntary-cessation exception to the mootness doctrine apply. Maj. Op. at 8–12. The voluntary-cessation doctrine holds “that ‘a defendant’s voluntary cessation of a challenged prac- tice does not deprive a federal court of its power to determine the legality of the practice.’” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (emphasis added) (quot- ing City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). But Norwegian is not a defendant, and its vaccine policy is not the challenged practice in this case, regardless of what the Ma- jority Opinion says now. See Maj. Op. at 9 (characterizing Norwe- gian’s vaccine policy as “the challenged policy”). Indeed, the Ma- jority Opinion addressing the merits in this appeal conceded as much: “This appeal concerns whether a Florida statute that pro- hibits all businesses operating in the state from requiring customers to provide documentary proof that they are vaccinated against COVID-19 violates the Free Speech and Commerce Clauses of the Constitution.” Norwegian Cruise Lines Holdings Ltd., 50 F.4th at USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 23 of 27
10 ROSENBAUM, J., Dissenting 21-12729
1130 (emphasis added). Rather than asking us “to determine the legality” of Norwegian’s vaccine policy, this appeal required us “to determine the legality” of Section 381.00316(1). Resisting this conclusion, the Majority Opinion claims that the voluntary-cessation doctrine can apply to a plaintiff under these circumstances. Maj. Op. at 9–11. To support that claim, the Ma- jority Opinion cites the Supreme Court’s decision in City of Erie v. Pap’s A.M., 529 U.S. 277 (2000). There, a municipality in Pennsyl- vania enacted an ordinance banning public nudity. Id. at 283. The plaintiff, a nude-dancing establishment located in the municipality, challenged the ordinance in state court, arguing that it violated the First Amendment. The Pennsylvania Supreme Court agreed and invalidated parts of the ordinance. Id. at 286. After the Supreme Court granted the petition to review the state-court judgment, the appellee-plaintiff submitted an affidavit asserting that it had ceased operating a nude dancing establishment in the municipality and, on that basis, asserted that the case was moot. Id. at 287. But the Su- preme Court disagreed, explaining that the municipality had an “ongoing injury” because the state-court judgment “barred” the city “from enforcing the public nudity provisions of its ordinance.” Id. at 288. “If the challenged ordinance is found constitutional,” the Court explained, then the appellant-municipality could “enforce it, and the availability of such relief is sufficient to prevent the case from becoming moot.” Id. But this appeal differs materially from City of Erie because we cannot grant any relief that will prevent this appeal from USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 24 of 27
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becoming moot. The district court’s preliminary injunction here prohibits Florida from enforcing Section 381.00316(1) against only Norwegian and its subsidiaries. See Rivkees, 553 F. Supp. 3d at 1180. But Norwegian has asked the district court to lift the pre- liminary injunction, so Florida would no longer be enjoined from enforcing its law against even Norwegian and its subsidiaries. In contrast, the state-court judgment in City of Erie invali- dated the municipality’s nudity provisions altogether, meaning that the municipality could not enforce its ordinance against any- one—the appellee-plaintiff there or anyone else. See City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 (2001) (“[H]ad we declared Erie moot, the defendant municipality would have been saddled with an ‘ongoing injury,’ i.e., the judgment striking its law.” (citing City of Erie, 529 U.S. at 288)). Given that Norwegian has asked the district court to lift the preliminary injunction, Florida (unlike the municipality in City of Erie) has no ongoing injury at all. In City of Erie, the Supreme Court emphasized that a favorable decision would once again ena- ble the defendant-municipality to enforce its law, “and the availa- bility of such relief [was] sufficient to prevent the case from becom- ing moot.” 529 U.S. at 288. But here, dismissing Florida’s appeal as moot would not leave the state burdened with the district court’s preliminary injunction because, as I’ve noted, Norwegian asked the district court to lift that preliminary injunction. See City News & Novelty, 531 U.S. at 283 (distinguishing City of Erie since USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 25 of 27
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“dismissal” for mootness would “not keep” the municipal defend- ant “under the weight of an adverse judgment”). In sum, this appeal from the district court’s order granting Norwegian a preliminary injunction became moot when Norwe- gian told the district court “that the preliminary injunction should now be lifted.” ECF No. 53 ¶ 5. III.
Concluding that this appeal is moot does not end the matter; the Supreme Court’s decision in United States v. Munsingwear, Inc., 340 U.S. 36 (1950), “always requires appellate courts to con- sider whether vacatur is appropriate when the requirements of Ar- ticle III are no longer met because one party is no longer able to obtain relief on the merits.” Democratic Exec. Comm. of Fla., 950 F.3d at 794. As for this issue, Florida and Norwegian both agree on two general propositions. First, when an appeal becomes moot before we can rule on it, we generally dismiss the appeal and vacate the underlying judgment. See Fla.’s Suppl. Letter Resp. at 9 (citing Sec’y, Fla. Dep’t of Corr., 778 F.3d at 1229–30); Norwegian’s Suppl. Letter Reply at 9–10. Second, in cases involving appeals from pre- liminary injunctions, this court’s “usual practice” is to dismiss the appeal without vacating the underlying district court order. Fla.’s Suppl. Letter Resp. at 9 (citing Brooks, 59 F.3d at 1122); Norwe- gian’s Suppl. Letter Br. at 9–10 (quoting Brooks, 59 F.3d at 1122). As far as vacatur goes, the parties disagree about only which of USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 26 of 27
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these two general propositions applies if we find that this appeal is moot. The Majority Opinion, on the other hand, muddies the wa- ters, insisting that Norwegian’s vacatur-related arguments prove that the company wishes for the preliminary injunction to “remain in place.” Maj. Op. at 4. In so doing, the Majority Opinion con- flates the question of mootness with the second-order question— whether, when an appeal is moot, to vacate the underlying district court judgment. But make no mistake: As far as the question of mootness is concerned, Norwegian told the district court “that the preliminary injunction should now be lifted.” ECF No. 53 ¶ 5. From that point forward, we could not issue any decision affecting the litigants’ rights. The only question that remains is whether to vacate the district court’s judgment. And that question is an easy one in this case because Su- preme Court precedent ties our hands. True, in appeals from in- terlocutory orders, our “usual practice is just to dismiss the appeal as moot and not vacate the order appealed from.” Democratic Exec. Comm. of Fla., 950 F.3d at 794 (quoting Brooks, 59 F.3d at 1122). But vacatur “is rooted in equity,” meaning that “the decision whether to vacate turns on ‘the conditions and circumstances of the particular case.’” Azar v. Garza, 138 S. Ct. 1790, 1792 (2018) (per curiam) (quoting United States v. Hamburg-Amerikanische Packetfahrt-Actien Gesellschaft, 239 U.S. 466, 478 (1916)). “One clear example where ‘vacatur’” is necessary arises when the appeal becomes moot from “the ‘unilateral action of the party who USCA11 Case: 21-12729 Document: 51 Date Filed: 12/22/2022 Page: 27 of 27
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prevailed in the lower court.’” Id. (alteration adopted) (quoting Ar- izonans for Off. English v. Arizona, 520 U.S. 43, 71–72 (1997)). Vacatur is clearly necessary here because Norwegian, after successfully procuring a preliminary injunction in the district court, unilaterally mooted this appeal by asking the district court to lift the preliminary injunction. For this reason, in addition to vacating our October 6, 2022, opinion as moot, I would vacate the district court’s order enjoining Florida from enforcing Section 381.00316 against Norwegian until what turned out to be October 4, 2022. IV.
“For a court to pronounce upon the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires.” Jacobson, 974 F.3d at 1245 (Pryor, C.J.) (alteration adopted) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101–102 (1998)). But the Majority Opin- ion does just that in this appeal by deciding on the constitutionality of Section 381.00316, even though that decision cannot afford ei- ther party any meaningful relief. In so doing, the Majority Opinion exercises power that Arti- cle III of the Constitution does not authorize. Because this ultra vires power grab tramples Article III’s case-or-controversy limita- tion on our jurisdiction, I respectfully dissent. And because today’s opinion hopelessly confuses our mootness precedent and violates the separation of powers, I respectfully urge the Court to revisit this matter en banc.