Perez-Kudzma v. United States ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-2128
CARMENELISA PEREZ-KUDZMA; VICENTE PEREZ ACEVEDO; BIXCIA NORIEGA
ACEVEDO; CARMEN GLORIA ACEVEDO PAGAN; ZULEMA QUINONES TRABAL,
Plaintiffs, Appellants,
v.
UNITED STATES; DONALD J. TRUMP, in his official capacity as
President, United States; KEVIN K. MCALEENAN, Acting Secretary,
Department of Homeland Security*; US DEPARTMENT OF HOMELAND
SECURITY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Carmenelisa Perez-Kudzma for appellants.
Annapurna Balakrishna, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellees.
* Pursuant to Fed. R. App. P. 43(c)(2), Acting Secretary Kevin
K. McAleenan has been substituted for former Secretary Kirstjen
Michele Nielsen as defendant.
October 9, 2019
BARRON, Circuit Judge. This appeal concerns a 2017 suit
that challenges the federal government's decision, following the
destruction wrought by Hurricane Maria, not to waive indefinitely
the cabotage provision of the Jones Act for Puerto Rico. That
provision, which applies to Puerto Rico, see 46 U.S.C. § 55101(a),
prohibits foreign-flag vessels from transporting merchandise
between United States coastwise points, see id. § 55102(b). The
District Court dismissed the suit for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). We now find that
the plaintiffs lack standing, and vacate and remand for dismissal
on jurisdictional grounds.
I.
The chain of events that led to this lawsuit began when,
following the damage that the hurricane inflicted on Puerto Rico,
the Secretary of the United States Department of Homeland Security
("DHS") issued a ten-day waiver of the cabotage provision on
September 28, 2017, see id. § 501, "to facilitate movement of all
products to be shipped from U.S. coastwise points to Puerto Rico."
The waiver applied "to covered merchandise laded on board a vessel
within the 10-day period of the waiver and delivered by October
18, 2017."1
1 This waiver was the last in a series of waivers that DHS
had issued relating to hurricanes that took place in September
2017. On September 8, 2017, in the wake of Hurricane Harvey and
Hurricane Irma, the Secretary of DHS, at the request of the
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On October 2, 2017, Carmenelisa Perez-Kudzma, Vicente
Perez Acevedo, Bixcia Noriega Acevedo, Carmen Gloria Acevedo
Pagan, and Zulema Quinones Trabal (three of whom are residents of
Massachusetts and one of whom is a resident of Puerto Rico) filed
suit in the United States District Court for the District of
Massachusetts. They named as the defendants the United States,
President Donald J. Trump, and the Secretary of DHS.
The plaintiffs, each of whom owns real estate and/or
personal property in Puerto Rico, contended that the defendants,
by refusing to extend the waiver of the cabotage provision "until
such time [as] Puerto Rico is deemed to have recovered from the
catastrophe caused by Hurricane Maria," were in violation of the
Equal Protection Clause, the Due Process Clause, and the Ninth
Amendment of the federal Constitution, as well as what they
describe as the public trust doctrine. The plaintiffs sought
declaratory relief, as well as a temporary restraining order
("TRO") and preliminary injunction "requiring that [DHS] extend[]
the Jones Act . . . [waiver] indefinitely."
The defendants opposed the plaintiffs' motion for a TRO
and moved to dismiss the plaintiffs' claims under Rule 12(b)(6).
Secretary of Defense and the Department of Energy, waived the
cabotage provision for seven days to facilitate the movement of
petroleum products into South Carolina, Georgia, Florida, and
Puerto Rico. On September 11, 2017, at those same agencies'
requests, the Secretary of DHS extended the waiver through
September 22, 2017.
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The District Court denied the plaintiffs' motion for a TRO on the
ground that the plaintiffs could not show likelihood of success on
the merits for their claims, and granted the defendants' motion to
dismiss for failure to state a claim under Rule 12(b)(6). The
plaintiffs then timely appealed.
II.
Understanding the plaintiffs to be seeking ongoing
injunctive relief, the defendants argue that the plaintiffs'
claims must be dismissed on jurisdictional grounds, because they
lack standing under Article III of the United States Constitution
to bring them.2 Because we are obliged to assure ourselves of our
jurisdiction under the federal Constitution before we may proceed
to the merits, see Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 94 (1998), we begin with this contention.
In order to bring a claim in federal court, a plaintiff
must satisfy the strictures of Article III of the United States
Constitution, which provides that federal courts have jurisdiction
only over "Cases" or "Controversies." U.S. Const. art. III, § 2,
cl. 1. To demonstrate that that there is a case or controversy,
2 Insofar as the plaintiffs do not seek ongoing injunctive
relief, their claims are moot, as they do not seek damages.
Horizon Bank & Tr. Co. v. Massachusetts, 391 F.3d 48, 53 (1st Cir.
2004) (explaining that "a case is moot when the court cannot give
any 'effectual relief' to the potentially prevailing party"
(quoting Church of Scientology of Cal. v. United States, 506 U.S.
9, 12 (1992))).
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a plaintiff must establish standing. And, to establish standing
in that constitutional sense, "a plaintiff must show (1) it has
suffered an 'injury in fact' that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 180-81 (2000); see Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016)
(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)).
The plaintiff "bears the burden of establishing these
elements," Spokeo, Inc., 136 S. Ct. at 1547, and must plead
"sufficient factual matter to plausibly demonstrate [] standing to
bring the action," Gustavsen v. Alcon Labs., Inc., 903 F.3d 1, 7
(1st Cir. 2018) (quoting Hochendoner v. Genzyme Corp., 823 F.3d
724, 731 (1st Cir. 2016)). The issue is one of law that we decide
de novo. See Katz v. Pershing, LLC, 672 F.3d 64, 70 (1st Cir.
2012).
The plaintiffs' complaint alleges that the defendants'
failure to extend indefinitely the waiver of the cabotage provision
has "hindered" and will continue to "hinder[]": (1) the
plaintiffs' "ability . . . to rebuild [their] family home[s] and
contribute towards the reconstruction of roads, structures,
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schools, buildings, monuments, and overall infrastructure of
Puerto Rico"; (2) their "ability to . . . rebuild [their]
properties in order to rent the same for income"; (3) their
"present and future ability to engage" in certain professions
(e.g., "the practice of federal law in Puerto Rico," "real estate,"
"property management," and film production); and (4) their
"ability to visit family members," "vacation," and "receive
medical services" in Puerto Rico and on the mainland. In
explaining the cause of this "hinder[ing]," the plaintiffs'
complaint alleges that it will result from "slowdowns in the
economy, [and in the] reconstruction of roads, infrastructure,
schools, universities, hotels, and buildings since higher costs to
rebuild will significantly delay the reconstruction of Puerto Rico
due to higher costs in expenses resulted by the Jones Act."
Thus, the plaintiffs appear to predicate their standing
on two interrelated contentions. First, they assert that the
increased shipping costs that they attribute to the defendants'
decision not to waive indefinitely the cabotage provision will, as
a general matter, both increase the costs of rebuilding on the
island and slow the island's economic recovery. Second, they
assert that these general adverse consequences for Puerto Rico
will in turn harm them specifically by "hindering" their ability
to repair or to rebuild their property in Puerto Rico, pursue
various economic opportunities through their businesses and
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professions, or travel to and from Puerto Rico with the consequence
that they will not be able to visit family and may even be unable
to receive medical services.
But, the plaintiffs' complaint hardly describes the
hindering in terms specific enough to indicate that it will result
from incrementally increased shipping costs attributable to the
defendants' conduct rather than from the "multitude of other
factors" that, post-hurricane, may bear on the costs of goods in
Puerto Rico and the health of the economy there. See Kauai Kunana
Dairy Inc. v. United States, No. CV. 09-00473 DAE-LEK, 2009 WL
4668744, at *5 (D. Haw. Dec. 8, 2009); see also Warth v. Seldin,
422 U.S. 490, 503-08 (1975) (finding that, despite an assumed
increase in general housing costs due to the challenged government
action, "[a]bsent the necessary allegations of demonstrable,
particularized injury, there can be no confidence" that the
government caused a redressable injury). This concern is
underscored by the plaintiffs' own recognition -- as stated in
their complaint -- that millions in Puerto Rico are similarly
hindered.
Compounding the problem, the plaintiffs set forth no
facts that purport to establish the extent of the increase in
shipping costs that may be attributed to the defendants' conduct
or the particular ways in which the hindering of which they
complain may be traced to such an increase rather than to the
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impact on the island of the hurricane's unprecedented damage. Nor,
on appeal, do the plaintiffs attempt to identify where in their
complaint they do allege any such facts. Rather, in response to
the defendants' challenge to their standing, they merely assert in
conclusory fashion that they have "set forth concrete and
particularized harms which were caused by violations of their
legally protected interests."
We thus are left with a complaint that sets forth only
a diffuse description of the asserted injuries and that omits any
facts that explain how those injuries could be identified as
resulting from increased shipping costs imposed by the Jones Act.
As a result, we agree with the defendants that the plaintiffs have
failed to set forth allegations in their complaint that are
sufficient to establish their Article III standing.
III.
The judgment below is vacated and remanded for the claims
to be dismissed on jurisdictional grounds. Each party shall bear
their own costs.
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