Norwegian Cruise Line Holdings Ltd v. State Surgeon General ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
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.
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2 Opinion of the Court 21-12729
____________________
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
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21-12729 Opinion of the Court 3
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
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4 Opinion of the Court 21-12729
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
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21-12729 Opinion of the Court 5
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
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6 Opinion of the Court 21-12729
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
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21-12729 Opinion of the Court 7
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.
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8 Opinion of the Court 21-12729
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.
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21-12729 Opinion of the Court 9
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
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10 Opinion of the Court 21-12729
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
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21-12729 Opinion of the Court 11
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
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12 Opinion of the Court 21-12729
(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.
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21-12729 Opinion of the Court 13
III. CONCLUSION
We DENY the motion to dismiss the appeal as moot.
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21-12729 ROSENBAUM, J., Dissenting 1
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.
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2 ROSENBAUM, J., Dissenting 21-12729
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
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21-12729 ROSENBAUM, J., Dissenting 3
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
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4 ROSENBAUM, J., Dissenting 21-12729
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.
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21-12729 ROSENBAUM, J., Dissenting 5
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.”).
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6 ROSENBAUM, J., Dissenting 21-12729
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
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21-12729 ROSENBAUM, J., Dissenting 7
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.
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8 ROSENBAUM, J., Dissenting 21-12729
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.
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21-12729 ROSENBAUM, J., Dissenting 9
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
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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
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21-12729 ROSENBAUM, J., Dissenting 11
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
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12 ROSENBAUM, J., Dissenting 21-12729
“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
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21-12729 ROSENBAUM, J., Dissenting 13
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
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14 ROSENBAUM, J., Dissenting 21-12729
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.