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

(a),

prohibits foreign-flag vessels from transporting merchandise

between United States coastwise points, see

§ 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

- 3 - 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.

- 4 - 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,

(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,

(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,

(1992))).

- 5 - 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.,

(2000); see Spokeo, Inc. v.

Robins,

(2016), as revised (May 24, 2016)

(citing Lujan v. Defs. of Wildlife,

(1992)).

The plaintiff "bears the burden of establishing these

elements," Spokeo, Inc.,

, and must plead

"sufficient factual matter to plausibly demonstrate [] standing to

bring the action," Gustavsen v. Alcon Labs., Inc.,

(1st Cir. 2018) (quoting Hochendoner v. Genzyme Corp.,

(1st Cir. 2016)). The issue is one of law that we decide

de novo. See Katz v. Pershing, LLC,

(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,

- 6 - 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

- 7 - 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,

, at *5 (D. Haw. Dec. 8, 2009); see also Warth v. Seldin,

(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

- 8 - 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.

- 9 -