Perez-Kudzma v. United States of America, et al.

Filing 31

Judge George A. O'Toole, Jr: OPINION AND ORDER entered denying 5 Motion for TRO; finding as moot 18 Motion to Expedite. (Halley, Taylor)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 17-11877-GAO
CARMENELISA PEREZ-KUDZMA, VINCENTE PEREZ ACEVEDO, BIXCIA NORIEGA
ACEVEDO, CARMEN GLORIA ACEVEDO PAGAN, and ZULEMA QUINONES TRABAL,
Plaintiffs,
v.
THE UNITED STATES OF AMERICA; DONALD J. TRUMP, in his official capacity as
President of the United States; THE DEPARTMENT OF HOMELAND SECURITY; and
ELAINE DUKE, in her official capacity as Acting Secretary,
Defendants.

OPINION AND ORDER
December 8, 2017
O’TOOLE, D.J.
The Merchant Marine Act of 1920, colloquially referred to as the “Jones Act,” requires
vessels transporting merchandise between United States ports to be wholly owned by United States
citizens. 46 U.S.C. § 55102(b). This requirement is sometimes described as the Act’s “cabotage”
provision. The exclusion of foreign-owned vessels from participating in the transport of
merchandise between U.S. ports, by reducing the number of vessels available for service, may
have the effect of slowing the delivery of needed equipment and supplies to a destination port
during a period of emergency, when a rapid relief response would be desirable.
Exceptions can be made, however. In particular, the head of an agency responsible for the
administration of navigation laws may waive compliance with the Jones Act cabotage provision
on recommendation by the Secretary of Defense that waiver is necessary in the interest of the
national defense. Id. § 501(a). Acting pursuant to that provision, this past September the Acting
Secretary of Homeland Security granted three temporary waivers of the Jones Act cabotage

provision in the wake of Hurricanes Harvey, Irma, and Maria, to permit relief supplies to flow
more quickly to the affected areas. After Harvey, a waiver was granted for seven days to permit
refined petroleum products to be shipped in non-U.S. vessels from New York, Pennsylvania,
Texas, and Louisiana to South Carolina, Georgia, Florida, and Puerto Rico. After Irma, a similar
seven day waiver was granted to permit refined petroleum products to be shipped in non-U.S.
vessels from New York, New Jersey, Delaware, Maryland, Pennsylvania, New Mexico, Texas,
Louisiana, Mississippi, Alabama, and Arkansas to Florida, Georgia, South Carolina, North
Carolina, Virginia, West Virginia, and Puerto Rico. After Maria, a waiver was granted for ten days,
for all products being shipped to Puerto Rico.
The waivers have all expired, and the Jones Act cabotage restriction is back in full force.
The plaintiffs in this action assert, among other things, that their business and property interests in
Puerto Rico have been and continue to be damaged as a result of the destruction caused by
Hurricane Maria. They bring this action to compel the relevant authorities to grant an extended
waiver of the Jones Act cabotage provision as applied to maritime transport to Puerto Rico, and
they seek a preliminary injunction to that effect. They advance claims under the due process and
equal protection clauses of the Fifth Amendment, the Ninth Amendment, and the so-called “public
trust” doctrine.
To succeed in obtaining a preliminary injunction, the plaintiffs must establish that the four
necessary factors weigh in their favor: (1) that they have a likelihood of success on the merits of
their claims; (2) that there is a likelihood that they will suffer irreparable harm if the injunction is
denied; (3) that the balance of harms tilts in their favor; and (4) that a ruling in their favor is in the
general public interest. Esso Standard Oil Co. (P.R.) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir.
2006) (citation omitted). “The sine qua non of this four-part inquiry is likelihood of success on the

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merits.” New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002) (citation
omitted). "‘[I]f the moving party cannot demonstrate that he is likely to succeed in his quest, the
remaining factors become matters of idle curiosity.’” Arborjet, Inc. v. Rainbow Treecare Sci.
Advancements, Inc., 794 F.3d 168, 173 (1st Cir. 2015) (citation omitted).
The plaintiffs first assert that the defendants violated their substantive due process rights
under the Fifth Amendment by only belatedly waiving the Jones Act as to Puerto Rico and by
subsequently declining to extend or renew the waiver. (Their argument in this respect is addressed
only to the third waiver, the one that applied solely to Puerto Rico.) To prevail on a claim that
executive action has denied a plaintiff substantive due process, the plaintiff must show that the
behavior of the relevant officer(s) “‘shock[s] the contemporary conscience.’” Gonzalez-Fuentes v.
Molina, 607 F.3d 864, 880 (1st Cir. 2010). 1 This standard requires showing that adverse executive
action was “‘so severe … so disproportionate to the need presented, and … so inspired by malice
or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and
inhumane abuse of official power literally shocking to the conscience.’” Id. at 881 (quoting Moran
v. Clarke, 296 F.3d 638, 647 (8th Cir. 2002) (en banc) (ellipses in original)). The factual basis for
the plaintiffs’ claim does not come close to satisfying that standard. At bottom what the plaintiffs
claim violates their substantive due process rights is the defendants’ decision not to suspend a
provision of statutory law. It may well be that there is a plausible case for a further and extended
waiver. But the decision to grant one is committed to executive judgment. The plaintiffs point to
no executive misconduct other than the failure to agree with them that a waiver should issue.

1

The plaintiffs’ initial complaint seemed to allege substantive due process violations stemming
from executive and legislative action, see (Compl. ¶¶ 101–124 (dkt. no. 1)), but they have since
clarified that they are challenging only the former, see (Pls.’ Reply to Defs.’ Opp’n to Pls.’ Mot.
TRO, 11 (dkt. no. 26)).
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The plaintiffs next assert that they were denied equal protection because Puerto Rico
received less favorable treatment regarding a Jones Act waiver in the wake of Maria than other
States, such as Florida or Texas, received after Harvey and Irma. The equal protection component
of the due process clause is “essentially a direction that all persons similarly situated should be
treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
(1985); see Aponte-Ramos v. Alvarez-Rubio, 783 F.3d 905, 908 (1st Cir. 2015).
Although the precise basis of plaintiffs’ equal protection claim is murky, it is nonetheless
clear that they have not shown a likelihood of success on the claim. Put simply, the plaintiffs have
not shown that Puerto Rico was treated less favorably than other States as to waivers. First of all,
Puerto Rico was included in all three waivers. The first two waivers that pertained to shipping
destinations in certain States also applied to shipping to Puerto Rico. There was nothing unequal
about that. Moreover, the third waiver issued for the benefit of Puerto Rico alone was a broader,
blanket waiver covering all merchandise, while the previous waivers for the other hurricaneaffected areas applied only to refined petroleum products. For these reasons, an argument could
plausibly be made that Puerto Rico did better than others in receiving the benefit of waivers. The
plaintiffs point to what they regard as an unnecessary delay in granting the third waiver as
distinguished from the rapidity with which the first waivers were granted as evidence of unequal
treatment. Again, Puerto Rico was as much a beneficiary of the prompt grant of the first two
waivers as the States named in those waivers, but even putting that aside, it is a stretch to regard
an agency’s slowness in taking a favorable discretionary action as sufficient by itself to make out
a claim of equal protection. Other than that delay, no other different or unequal treatment has been
shown.

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Finally, neither the Ninth Amendment nor the “public trust” doctrine is capable of
providing the plaintiffs a basis for their requested relief. The Ninth Amendment does not create
enforceable substantive rights, Martinez-Rivera v. Sanchez Ramos, 498 F.3d 3, 9 (1st Cir. 2007),
and the “public trust” doctrine concerns whether a State or a private person may claim ownership
of tidal lands and whether a State may alienate those lands, see Phillips Petrol. v. Mississippi, 484
U.S. 469, 473-74 (1988); Alec L. v. Jackson, 863 F. Supp. 2d 11, 13 (D.D.C. 2012), and it is
plainly inapplicable in the present case.
In sum, the plaintiffs have not established a likelihood of success on the merits of any of
their claims. Consequently, the remaining preliminary injunction factors need not be addressed.
The plaintiffs’ motion for a preliminary injunction is DENIED.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge

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