Cannot Get Through The Front Door
Perez-Kudzma v. United States,940 F.3d 142 (1st Cir. 2019).
By: William Tebbe
TheJones Act’s “cabotage” provision forbids foreign ships from transportingmerchandise “between points in the United States to which the coastwise lawsapply, either directly or via a foreign port….”[1] In September 2017,Hurricane Maria devastated the United States territory of Puerto Rico. On September 28, 2017, the Department ofHomeland Security (DHS) waived the cabotage provision for 10 days (requiringmerchandise to be on a vessel within 10 days and arrive in Puerto Rico by October18, 2017). Therefore, more ships were availableto transport supplies to Puerto Rico.
Theplaintiffs (three Massachusetts residents and one Puerto Rico resident) filedfor injunctive relief and requested an indefinite waiver of the cabotageprovision. The district court denied theplaintiffs’ request for injunctive relief and held that the plaintiffs did notprove how any of their claims had a likelihood of success on the merits. The plaintiffs appealed. Additionally, the defendants argued theplaintiffs lacked standing.
Tobegin and end its analysis, the First Circuit inquired into whether theplaintiffs had standing. As Article IIIof the United States Constitution expresses, plaintiffs have standing whenthere are “Cases” or “Controversies.”[2] To have standing, a plaintiff must prove,among other requirements, that “it has suffered an 'injury in fact' that is (a)concrete and particularized and (b) actual or imminent, not conjectural orhypothetical.”[3]Additionally, the First Circuit noted that alleged facts of particularizedinjury are necessary to show the government action caused a redressableinjury. Here, the plaintiffsasserted two injuries from increased shipping costs (allegedly caused by thelimited waiver): (1) the deceleration in Puerto Rico’s rebuilding and economy and(2) as a result of the slow down, hinderance in property repair, ability to obtainprofessional opportunities, or travel to and from Puerto Rico. Here, the court concluded the plaintiffs didnot allege sufficient facts of particularized injury because millions aresimilarly hindered, a recognized fact by the plaintiffs, and the plaintiffs didnot show neither the extent of shipping cost increase nor how DHS’s actioncaused injury. The First Circuit vacatedand remanded for the dismissal of claims due to lack of standing.
[1] 46 U.S.C. §55102(b) (2018).
[2] U.S. Const. art. III, § 2, cl. 1.
[3] Friends of theEarth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) ((citingLujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).)
