Art Metal-USA, Inc. v. United States, Civ. A. No. 81-1688.

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: Joan M. Bernott, U.S. Dept. of Justice, Civil Division, Washington, D.C., for defendant
• Citation: 577 F. Supp. 182
• Parties: ART METAL-U.S.A., INC., Plaintiff, v. UNITED STATES of America, Defendant.
• Decision Date: 22 September 1983
• Docket Number: Civ. A. No. 81-1688.

577 F. Supp. 182

ART METAL-U.S.A., INC., Plaintiff,
v.
UNITED STATES of America, Defendant.

Civ. A. No. 81-1688.

United States District Court, District of Columbia.

September 22, 1983.

577 F. Supp. 183

Herbert L. Fenster, Washington, D.C., for plaintiff.

Joan M. Bernott, U.S. Dept. of Justice, Civil Division, Washington, D.C., for defendant.

MEMORANDUM

HAROLD H. GREENE, District Judge.

The government has filed a motion to dismiss which presents a number of questions under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680. Plaintiff's five-count complaint stems from actions which the General Services Administration took, beginning in 1978, that severed a long-time contractual arrangement whereby plaintiff supplied the government with metal office furniture. Three counts sound in per se negligence and intentional interference with prospective economic advantage; one count alleges trade libel or product disparagement; and the final count claims abuse of prosecution by the Inspector General of the GSA. The government maintains that all of the claims are barred by the FTCA because (1) they do not state torts recognized by the District of Columbia, (2) they arise out of torts as to which the United States has declined to waive its sovereign immunity, see 28 U.S.C. § 2680(h), and (3) they are subject to the discretionary function exception to the FTCA, see 28 U.S.C. § 2680(a). It is not necessary to explore the discretionary function issues because the complaint is subject to dismissal on the other grounds cited by the government.

Counts I, II, IV

Insofar as Counts I, II, and IV allege tortious interference with prospective economic advantage, they are barred for two reasons. First, 28 U.S.C. § 2680(h) states that the government has not waived immunity with respect to claims "arising out of ... interference with contract rights." Plaintiff attempts to distinguish the tort of interference with future contracts (or interference with prospective economic advantage) from that of interference with present contracts, arguing that the Act bars only the latter. This makes little sense, however, since if it were accepted, it would allow a cause of action against the government for the more speculative injury, while prohibiting it for the more palpable injury that occurs when an existing contract is broken. Moreover, District of Columbia courts consider the tort of interference with prospective advantage to be but a variety of the more general tort of interference with contractual relations. DeKine v. District of Columbia, 422 A.2d 981, 988 (D.C.App.1980); Sullivan v. Heritage Foundation, 399 A.2d 856, 861 (D.C. App.1979). Thus, under local law, plaintiff's claim "arises out of ... interference with contract rights."

577 F. Supp. 184

Second, the elements of the tort require that the tortfeasor's actions have interfered with contractual relations between plaintiff and a third party. Here, plaintiff claims that agents of the United States interfered with plaintiff's contractual relations with the United States. This is not sufficient. The government's agents are not separate from the government itself for purposes of establishing the three parties necessary to a three-party tort.

To the extent that Counts I, II and IV allege that the government acted wrongfully by constructively debarring plaintiff from competing for future contracts, without holding a hearing, in violation of GSA's regulations and arguably in violation of the Constitution,¹ they likewise fail to state a valid tort claim under District of Columbia law. To be sure, District of Columbia courts have found that statutes and regulations may enunciate standards of care that rise to the level of per se negligence, see, e.g., CECO Corp. v. Coleman, 441 A.2d 940 (D.C.App.1982), but this does not mean that every violation of a statute or regulation that arguably results in economic injury gives rise to a tort cause of action in the District of Columbia. Since District of Columbia courts have not embraced a form of generic tort like the prima facie tort recognized by New York courts, it is still necessary in a case brought in the District of Columbia under the FTCA to allege an established cause of action, which plaintiff has not done. Accord, Frank Dugan t/a The Communications Network v. United States, No. 81-1635 (E.D.Pa. Nov. 19, 1982), appeal pending, No. 83-1027, slip op. at 11; Baer v. United States, 511 F.Supp. 94 (N.D.Ohio 1980). But see Donohue v....