United States v. Am. Commercial Lines, L.L.C.

• Decision Date: 16 July 2014
• Docket Number: No. 13–30358.,13–30358.
• Citation: 759 F.3d 420
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: UNITED STATES of America, Plaintiff–Counter Defendant–Appellee v. AMERICAN COMMERCIAL LINES, L.L.C., Defendant–Counter Claimant–Third Party Plaintiff–Appellant v. Environmental Safety & Health Consulting Services, Incorporated; United States Environmental Services, L.L.C., Third Party Defendants–Appellees.

759 F.3d 420

UNITED STATES of America, Plaintiff–Counter Defendant–Appellee

v.AMERICAN COMMERCIAL LINES, L.L.C., Defendant–Counter Claimant–Third Party Plaintiff–Appellant

v.Environmental Safety & Health Consulting Services, Incorporated; United States Environmental Services, L.L.C., Third Party Defendants–Appellees.

No. 13–30358.

United States Court of Appeals, Fifth Circuit.

July 16, 2014.

Anne M. Murphy, Trial Attorney, Matthew Miles Collette, U.S. Department of Justice, Washington, DC, for Plaintiff–Counter Defendant–Appellee.

Glenn G. Goodier, Richard David Bertram, Esq., Jones Walker LLP, New Orleans, LA, John A.V. Nicoletti, Esq., Terry Lee Stoltz, Esq., Richard W. Stone, II, Nicoletti, Hornig & Sweeney, New York, NY, for Defendant–Counter Claimant–Third Party Plaintiff–Appellant.

Edwin Christian Laizer, James Ted Rogers, III, Esq., Margot L.K. Want, Esq., Adams & Reese, L.L.P., New Orleans, LA, Lawrence I. Kiern, Esq., Winston & Strawn, L.L.P., Washington, DC, William Sean O'Neil, Esq., Houston, TX, William E. O'Neil, Metairie, LA, for Third Party Defendants–Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JOLLY, GARZA, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

Following an oil spill, responsible party American Commercial Lines (“ACL”) contracted with Environmental Safety & Health Consulting Services Inc. (“ES & H”) and United States Environmental Services, L.L.C (“USES”) to provide cleanup services. After ACL failed to pay the full outstanding amounts owed to ES & H and USES within the 90–day period mandated by the Oil Pollution Act of 1990 (“OPA”), the United States paid the balance out of the Oil Spill Liability Trust Fund (the “Fund”) and filed suit against ACL to recover its payment. ACL sought to join ES & H and USES as third party defendants, or alternatively hold ES & H and USES directly liable to ACL to the extent ACL was found liable to the United States. The district court joined both parties but dismissed ACL's claims against ES & H and USES as displaced by OPA.¹ We AFFIRM.

FACTUAL BACKGROUND

This case involves an oil spill in the Mississippi River near New Orleans, Louisiana. On July 23, 2008, the M/V TINTOMARA, an ocean-going tanker, collided with DM 932, an unmanned barge carrying slightly less than 10,000 barrels of fuel oil, which was towed by the tug M/V MEL OLIVER. The collision substantially damaged the barge, and a large quantity of oil spilled into the river. ACL owned the tug and barge. D.R.D. Towing, L.L.C. (“DRD”) provided the crew for the tug towing the barge under a bareboat charter between ACL and DRD. Gabarick v. Laurin Maritime (America) Inc. v. D.R.D. Towing Company, L.L.C., 753 F.3d 550, 551–52 (5th Cir.2014).

Under the Clean Water Act (“CWA”), also known as the Federal Water Pollution Control Act (“FWPCA”), 33 U.S.C. §§ 1321, as amended by OPA, the Coast Guard has primary overall responsibility for directing oil spill cleanup in the coastal zone. See33 U.S.C. § 1321(d)(2)(C); 40 C.F.R. § 300.145. However, under OPA, the Coast Guard identifies “responsible part[ies]” who must pay for oil spill cleanup in the first instance,² typically “any person owning, operating, or demise chartering the vessel.” 33 U.S.C. § 2701(32). Responsible parties may then contract with spill responders to execute the oil spill cleanup.

The Coast Guard's National Pollution Funds Center (“NPFC”) administers the Fund. The Fund is authorized both (1) to pay outstanding cleanup costs and damages when a responsible party can limit its liability or establish a complete defense (or when no responsible party is ever identified), see id. § 2712(a)(4); and (2) to guarantee that particular OPA claimants, including spill responders, are paid quickly, see id. § 2713. Claimants must first present their claims to the responsible party, see id. § 2713(a), but if the responsible party has not paid the claim within 90 days, “the claimant may elect to commence an action in court against the responsible party ... or to present the claim to the Fund.” Id. § 2713(c)(2); see also33 C.F.R. § 136.103(c)(2). The Fund will reimburse only those removal costs that are necessary and reasonable, and that adhere to the relevant statutory criteria for Fund payments. See33 C.F.R. §§ 136.105, 136.201, 136.203, 136.205. When the Fund has made payments to cover the immediate costs of oil spill cleanup, it can recoup those payments from other entities, including the responsible party. “[P]ayment of any claim or obligation by the Fund” results in “the United States Government acquiring by subrogation all rights of the claimant ... to recover from the responsible party.” 33 U.S.C. § 2712(f); see also33 C.F.R. § 136.115(a) (compensation from the Fund includes an assignment to the government of the claimant's rights against third parties).

Following the spill, the Coast Guard investigated and determined that, as the owner of the barge DM–932 and tug M/V OLIVER, ACL was a responsible party under OPA and therefore liable for “removal costs and damages” resulting from the incident. See33 U.S.C. § 2702(a). ACL then entered into a contract with spill responders and Third Party Defendants ES & H and USES to provide cleanup services for the oil spill. The spill responders invoiced ACL for their services, but ACL disputed some of the claims and did not pay the full outstanding amounts owed to ES & H and USES for removal and cleanup costs within the 90–day time frame mandated by OPA.³See id. § 2713(c)(2). Instead, ACL paid ES & H approximately $10.6 million and withheld $3.9 million; it paid USES approximately $14 million and withheld $4.4 million. At that point, OPA allowed ES & H and USES to “elect” one of two options: (1) sue ACL for payment; or (2) submit a claim for uncompensated removal costs to the Fund. Both spill responders filed claims with the Fund. After requesting “documentation deemed necessary” to pay a claim, see33 C.F.R. § 136.105(a), the Fund paid $3,071,222.83 to ES & H and $1,519,564.74 to USES.⁴See33 U.S.C. § 2713(a)- (d).

The United States, in turn, sued ACL to recover the Fund's payment to ES & H and USES, as well as a penalty under the CWA and statutory damages under OPA. In response, ACL contended, inter alia, that ES & H and USES failed to provide adequate documentation for the amounts billed to and paid out by the Fund. ⁵ Consequently, ACL sought to join ES & H and USES as third party defendants to the United States' claims in the proceedings below. Alternatively, ACL sought to hold ES & H and USES directly liable to ACL to the extent that ACL was found liable to the United States. The United States, ES & H, and USES opposed the joinder of ES & H and USES, and each filed motions to dismiss ES & H and USES as third party defendants to the United States' action against ACL. The district court held that ACL's joinder of ES & H and USES was proper under Fed.R.Civ.P. 14(c) and our decision in Luera v. M/V Alberta, 635 F.3d 181, 188–189 (5th Cir.2011). However, citing Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008), and In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, 808 F.Supp.2d 943 (E.D.La.2011), the district court granted the government's Rule 12(b)(6) motion to dismiss ACL's claims against ES & H and USES because OPA displaces these claims. The district court explained in its Order and Reasons that “[t]he proper procedural vehicle to litigate defects in the claim payment process is as a defense against the Fund under the ‘arbitrary and capricious' standard of the Administrative Procedure Act, as ACL acknowledges.”

ACL filed the instant appeal. On appeal, ACL concedes that when OPA explicitly sets a rule of law it displaces federal common law and general maritime law, and that, as the designated responsible party, ACL was strictly liable under OPA for costs of cleanup. ACL asserts, however, that the district court erred in holding that OPA displaced its federal common law and general maritime law claims against ES & H and USES because “OPA does not ‘explicitly’ do so.”

STANDARD OF REVIEW

A district court's dismissal of a complaint under Rule 12(b)(6) is a question of law that we review de novo. Torch Liquidating Trust ex rel. Bridge Assoc. LLC v. Stockstill, 561 F.3d 377, 384 (5th Cir.2009).

DISCUSSION

Our inquiry presents the question of whether OPA provides the exclusive source of law for an action involving a responsible party's liability for removal costs governed by OPA. For the following reasons, we find that it does, and accordingly we hold that ACL does not have a cause of action against the spill responders who exercised their statutory right to file claims with the Fund after ACL failed to timely pay their claims.

We have previously held that, in enacting OPA, Congress intended to build upon the Clean Water Act to “ ‘create a single Federal law providing cleanup authority, penalties, and liability for oil pollution.’ ... OPA prescribes a supplemental, comprehensive federal plan for handling oil spill responses, allocating responsibility among participants, and prescribing reimbursement for cleanup costs and injuries to third parties.” In re: Deepwater Horizon, 745 F.3d 157, 168 (5th Cir.2014) (quoting S.Rep. No. 101–94, at 9 (1989), reprinted in 1990 U.S.C.C.A.N. 722, 730).

More generally, when Congress enacts a carefully calibrated liability scheme with respect to specific remedies, “the structure of the remedies suggests that Congress intended for th[e] statutory remedies to be exclusive.” United States v. M/V BIG SAM, 681 F.2d 432, 441 (5th Cir.1982) (internal quotation marks and citation omitted) (construing the analogous FWPCA, whose liability standard and limited recovery of removal costs OPA borrows). Indeed, “we are to conclude that federal common law has been preempted as to every question to which the legislative scheme spoke directly, and every problem that ...