[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

2 Opinion of the Court 21-12729

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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

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 quotat