Hornbeck Offshore Transp., LLC v. U.S.

• Decision Date: 30 June 2009
• Docket Number: No. 08-5225.,08-5225.
• Citation: 569 F.3d 506
• Parties: HORNBECK OFFSHORE TRANSPORTATION, LLC, Appellant v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

569 F.3d 506

HORNBECK OFFSHORE TRANSPORTATION, LLC, Appellant v. UNITED STATES of America, Appellee.

No. 08-5225.

United States Court of Appeals, District of Columbia Circuit.

Argued April 14, 2009.

Decided June 30, 2009.

Appeal from the United States District Court for the District of Columbia (No. 1:07-cv-01030-RCL).

Gene C. Schaerr argued the cause for appellant. With him on the briefs were Lawrence I. Kiern, Thomas L. Mills, and Gerald A. Morrissey, III.

Sydney A. Foster, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Gregory G. Katsas, Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, and Mark B. Stern, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before SENTELLE, Chief Judge, and ROGERS and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

Opinion filed by Circuit Judge ROGERS, concurring in part.

BROWN, Circuit Judge:

Hornbeck Offshore Transportation, LLC owns and operates oil transport vessels, including the ENERGY 8701, a single-hulled oil barge. All single-hulled oil barges have been slated to be phased out under the Oil Pollution Act of 1990 ("OPA"), but the actual phase-out date depends on a vessel's gross tonnage. 46 U.S.C. § 3703a(c). The U.S. Coast Guard initially assigned a phase-out date which Hornbeck believed was too early. After successfully challenging the Coast Guard's initial determination under the Administrative Procedure Act ("APA"), Hornbeck filed a tort suit under the Federal Tort Claims Act ("FTCA"), seeking recovery of $6,578,789.65 for the alleged damages caused by the misassignment. Because Hornbeck's common law allegations have no local law analog, we reject his FTCA claims and affirm the district court's dismissal.

I. Background

After the Exxon Valdez oil spill, Congress passed the OPA, requiring all newly constructed barges to be double-hulled to reduce the risk of similar accidents. 46 U.S.C. § 3703a(a). Single-hulled oil vessels that predated the act — such as the ENERGY 8701 — were subject to statutory phase-out dates based on gross tonnage: as relevant here, if the gross tonnage of the barge was 5,000 gross tons or more, it had to be phased out by January 1, 2005, id. § 3703a(c)(3)(A)(vii); if the gross tonnage of the barge was less than 5,000 gross tons, it had to be phased out by January 1, 2015, id. § 3703a(c)(2).

There are two methods of determining the gross tonnage of a barge: the regulatory system and the convention system. See id. § 3703a(e)(1). In 1976, the ENERGY 8701's regulatory system measurement was 5,323 tons. In 2004, convention system measurement was 4,660 tons. Hornbeck requested a 2015 phase-out date based on the lighter measurement. The Coast Guard denied the request and assigned a 2005 phase-out date. See Hornbeck Offshore Transp., LLC v. U.S. Coast Guard, 424 F.Supp.2d 37, 39-43 (D.D.C. 2006) (discussing in detail the statutory framework, the measurement systems, and the Coast Guard's decision).

In 2004, Hornbeck filed an APA suit challenging the assigned date and, while the suit was still pending, took its barge out of service. See id. at 38. After the district court interpreted the statutory language to require the later phase-out date, id. at 58, the Coast Guard changed ENERGY 8701's phase-out date to 2015, and Hornbeck placed the barge back into service.

In 2007, Hornbeck filed a lawsuit under the FTCA, for both negligent and intentional torts, seeking consequential damages for the lost profits while its barge was out of service. See Hornbeck Offshore Transp., LLC v. United States, 563 F.Supp.2d 205, 209 (D.D.C.2008). Hornbeck claims it lost over six-and-a-half million dollars in potential profits as a result of "the Coast Guard's lack of due care, negligence, [and wrongful acts] in assigning an improper OPA[ ] phase-out date for the Barge." Compl. ¶¶ 6, 39. The district court granted the government's motion to dismiss the FTCA suit for lack of subject-matter jurisdiction, holding that the United States has sovereign immunity because there is no local private analog to Hornbeck's claim. 563 F.Supp.2d at 217.

II. Discussion

The FTCA waives sovereign immunity "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). This statutory text does not create a cause of action against the United States; it allows the United States to be liable if a private party would be liable under similar circumstances in the relevant jurisdiction. We look to the law of the local jurisdiction — in this case, the District of Columbia — to determine whether there is a local private party analog to Hornbeck's claims. We conclude there is none. Hornbeck identifies no duty that would give rise to liability under District of Columbia law; its claims arise purely out of a federal statutory scheme that has no local analog. Although Hornbeck casts its complaint in common law tropes — negligence and intentional trespass — neither action can sustain its claim, as neither action is analogous to the federal legal duty that was violated.

A. Federal Law

Violations of federal law — when not accompanied by any local law violation — cannot support a suit under the FTCA. Art Metal-USA, Inc. v. United States, 753 F.2d 1151, 1157 (D.C.Cir.1985). The Supreme Court has "consistently held that § 1346(b)'s reference to the `law of the place' means law of the State — the source of substantive liability under the FTCA." FDIC v. Meyer, 510 U.S. 471, 478, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). In Meyer, the Court rejected the applicability of the FTCA to a tort based on a constitutional violation, holding that "federal law, not state law, provides the source of liability for a claim alleging the deprivation of a federal constitutional right." Id. The same is true in this case.

Although Hornbeck attempts to bring its claims under D.C. tort law, the violation flows only from a federal statute specifying phase-out dates for barges — 46 U.S.C. § 3703a(c)(2) — which permits single-hulled barges under 5,000 gross tons to continue to operate until 2015. According to Hornbeck's own complaint, its negligence suit is based entirely on the Coast Guard's "assigning an improper phase-out date and failing to assign the proper phase-out date for the ENERGY 8701." Compl. ¶ 39. This error — again, according to Hornbeck's own complaint — is what "caused injuries and damages in the amount of $6,578,789.65." Id. As the very allegations make clear, the only alleged error in this case was the Coast Guard's failure to follow federal law. No local law imposes tort liability for bungling the phase-out date for Hornbeck's barge.

Absent the federal law phase-out requirement, Hornbeck could not possibly have a claim for damages. Without the OPA provision, Hornbeck admits — as it must — that it does not have any claim for injury. Oral Arg. Recording at 2:14-19 ("If they had applied the statute [46 U.S.C. § 3703a(c)] correctly, that's true, we wouldn't have a lawsuit."). Clearly, then, the only basis for Hornbeck's claim is a federal statute, not any state or local law. Although the FTCA can apply where a federal statute "provide[s] the standard of care against which the government's conduct should be assessed," Art Metal, 753 F.2d at 1159, nothing in the federal phase-out provision suggests the creation of a standard of care to be applied under local law. Nor does the statute indicate that "the government has assumed duties under local tort law." Id. at 1159 n. 15.

In Art Metal, we affirmed dismissal for a negligence suit brought against the United States for failure to follow federal regulations and due process requirements. 753 F.2d at 1152. In a holding directly applicable here, Art Metal explained that "by basing its negligence claim entirely on violations of federal duties, [the plaintiff] fails to consider that the FTCA waives the immunity of the United States only to the extent that a private person in like circumstances could be found liable in tort under local law." Id. at 1157 (emphasis added). It is well-established that "the violation of a federal statute or regulation by government officials does not of itself create a cause of action under the FTCA." Id.

Hornbeck attempts to circumnavigate the local law requirement by arguing that there is a "general duty of one who undertakes an action ... to act with due care." Appellant Br. at 26. Although we do not doubt that this extremely generalized standard of due care may be part of D.C.'s common law of negligence, citation to the generic duty "to act with due care" while undertaking an action does not help Hornbeck in this case. "The FTCA's local law requirement may not be circumvented merely by casting the alleged constitutional wrong as negligence." Art Metal, 753 F.2d at 1160. Similar reasoning applies here, where Hornbeck has merely re-labeled a violation of a federal statute as common law claims. We agree with the reasoning of several of our sister circuits, which have noted that "[i]t is virtually axiomatic that the FTCA does not apply where the claimed negligence arises out of the failure of the United States to carry out a [federal] statutory duty in the conduct of its own affairs." Sea Air Shuttle Corp. v. United States, 112 F.3d 532, 536 (1 st Cir.1997) (second alteration in original); see also United States v. Agronics, 164 F.3d 1343, 1345 (10th Cir.1999); Johnson v. Sawyer, 47 F.3d 716, 728 (5th Cir. 1995) (en banc) ("[T]he FTCA ... is unavailable where [t]he existence or nonexistence of the claim depends entirely upon Federal Statutes." (second alteration in original)).

To say the violation of a federal statute cannot be the sole basis of an FTCA claim is not to say the claim must exist entirely independently of any federal provision. It means the claim must at least be...