Hornbeck Offshore Transportation, LLC v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 14, 2009 Decided June 30, 2009

No. 08-5225

HORNBECK OFFSHORE TRANSPORTATION, LLC,

APPELLANT

v.

UNITED STATES OF AMERICA,

APPELLEE

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.

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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 mis-

assignment. 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, the convention

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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. §

4

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 (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

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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

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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 (1st 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 supported by analogous local law — i.e.,

a private person guilty of similar malfeasance would be liable

under local law. In other words, an FTCA claim is not

necessarily barred if it is partially related to a federal statute,

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because the ultimate inquiry is always whether there is a proper

local analog. Art Metal, 753 F.2d at 1158. But where a claim

is “wholly grounded on a duty” created by a federal statute such

that there is no local law that could support liability of a private

party for similar actions, the FTCA does not apply. Johnson, 47

F.3d at 729.

Despite Hornbeck’s heavy reliance on Indian Towing Co.

v. United States, 350 U.S. 61 (1955), that case is distinguishable.

In Indian Towing, the Supreme Court held the United States

could be liable under the FTCA for its negligent operation of a

lighthouse where the Coast Guard allegedly allowed a light bulb

to go out and negligently failed to check the bulb for about a

month. Id. at 62. The Court held such acts of negligence could

create liability under local law, because a private person who

failed to check a light bulb for a month could be found

negligent. Unlike in Indian Towing — where the negligence of

the act did not depend on violation of any federal statute, but on

basic principles of negligence — the violation in this case only

exists because of the federal statute’s specification of the phase-

out date. Local negligence law could not conceivably be read to

create liability for an action such as assigning a phase-out date

in 2015 rather than 2005.

This Court in Art Metal was careful to distinguish between

a federal statute which merely creates “federal legal duties” and

one which suggests “that the government has assumed duties

under local tort law.” 753 F.2d at 1159 n.15. As in Art Metal,

the phase-out statute in this case does not suggest any

assumption of local tort law duties. Rather, it simply creates a

“federal legal duty” to assign a phase-out date in 2015, which

Art Metal explicitly held not actionable under the FTCA. To

make the point more clearly: Would there still be a local cause

of action without the federal statute? The answer is clearly

“no.” If there is no local law under which “a private person[]

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would be liable to the claimant in accordance with the law of the

place where the act or omission occurred,” sovereign immunity

has not been waived. 28 U.S.C. § 1346(b)(1).

B. Local Law

As this court made clear in Art Metal, “[d]uties set forth in

federal law do not, therefore, automatically create duties

cognizable under local tort law. The pertinent inquiry is

whether the duties set forth in the federal law are analogous to

those imposed under local tort law.” 753 F.2d at 1158

(emphasis in original). Because there is no automatic exemption

for “uniquely governmental functions,” even where duties are

embodied in a federal statute, we must look “further afield” for

possibly analogous local law. United States v. Olson, 546 U.S.

43, 46 (2005). Lacking any obvious local law analogs,

Hornbeck tries a more oblique tack and argues the Coast

Guard’s malfeasance satisfies two common law tort theories: (1)

negligence for failure to exercise due care while undertaking a

service and (2) intentional trespass to an intangible chattel.

Neither theory holds water.

1. Negligent Undertaking

Hornbeck argues that D.C. courts apply the well-recognized

negligent rescuer duty. This doctrine — sometimes referred to

as the “good Samaritan” doctrine, Fed. Ins. Co. v. Thomas

Perry, Inc., 634 F. Supp. 349, 353 (D.D.C. 1986), and famously

articulated by Justice Cardozo in Glanzer v. Shepard, 135 N.E.

275, 276 (N.Y. 1922) — has been cited approvingly in the local

jurisdiction. Security Nat’l Bank v. Lish, 311 A.2d 833, 834–35

(D.C. 1973). The D.C. Court of Appeals has also cited with

approval § 323 of the Second Restatement of Torts, see

Haynesworth v. D.H. Stevens Co., 645 A.2d 1095, 1097 (D.C.

1994), which outlines the negligent rescuer duty. Under § 323,

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One who undertakes, gratuitously or for consideration,

to render services to another which he should recognize

as necessary for the protection of the other’s person or

things, is subject to liability to the other for physical

harm resulting from his failure to exercise reasonable

care to perform his undertaking . . . .

Restatement (Second) of Torts § 323 (1965).

The negligent rescuer duty applies to actions the defendant

“should recognize as necessary for the protection of the other’s

person or things.” Id. The assignment of the phase-out date of

single-hulled oil vessels was not for Hornbeck’s protection. We

see no way of construing OPA, which was passed in response to

the Exxon Valdez oil spill, as an effort to protect the owners of

single-hulled oil vessels. See Hornbeck, 424 F. Supp. 2d at

39–40 (discussing OPA’s passage). OPA was designed “to

streamline federal law so as to provide quick and efficient

cleanup of oil spills, compensate victims of such spills, and

internalize the costs of spills within the petroleum industry.”

Rice v. Harken Exploration Co., 250 F.3d 264, 266 (5th Cir.

2001) (citing Senate Report No. 101-94, reprinted in 1990

U.S.C.C.A.N. 722, 723).

2. Intentional Trespass Against Intangible Chattels

In addition to its negligence theory, Hornbeck also attempts

to characterize its claim as an intentional tort. Hornbeck

advances, apparently for the first time, a theory of trespass to

intangible chattels. We cannot find a meaningful indication that

it raised this theory before the district court, however. Hornbeck

only cites its opposition to the motion to dismiss as evidence

that it raised the claim before the district court. But its

arguments below focused only on a claim for trespass to

tangible chattels. For example, Hornbeck stated its claim as:

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“the Government[] intentionally intermeddle[d] with another’s

chattel, here Hornbeck’s Barge.” Pl.’s Opp. to Mot. to Dismiss,

21 (emphasis added). The chattel allegedly trespassed upon was

the barge — a tangible chattel, not some intangible right.

Although Hornbeck cited some cases dealing with intangible

rights, it did not signal that the cases were being used to support

any claim for trespass to intangible chattels. Instead, Hornbeck

offered cases to support the measurement of damages as tied to

lost economic value. See id. (“[D]amages are measured by the

diminution of the property’s value caused by the interference,

here the loss of the use of the Barge.”). Because Hornbeck

never used the phrase “intangible chattels” below, instead

referring only generically to “the common law tort of trespass,”

id. at 22, the theory asserted on appeal appears to have been

forfeited, as it was not fairly raised before the district court.

Even if Hornbeck’s claim of intentional trespass to

intangible chattels was not forfeited, it fails on the merits. As

support for its theory, Hornbeck cites the proposition that “any

intangible generally protected as personal property may be the

subject matter of a suit for conversion.” Pearson v. Dodd, 410

F.2d 701, 707 n.34 (D.C. Cir. 1969). According to Hornbeck,

its ethereal “right to use the Barge” is the intangible right which

was violated. Appellant Br. at 48. The Restatement makes

clear, however, that trespass to intangible chattels refers to

documents such as negotiable checks and stock certificates —

items in which the property is entirely merged with a document.

Restatement (Second) of Torts § 242(2) & cmt. e. Hornbeck’s

claimed “right to use the Barge” is in no way comparable, and

the company makes no effort to justify commandeering this ill-

fitting doctrine. Indeed, Hornbeck does not even show how its

“right to use the Barge” is “generally protected as personal

property,” Pearson, 410 F.2d at 707 n.34, nor does it cite any

authority to support this necessary proposition. The alleged

trespass to intangible chattels is an untenable analog.

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Lastly, Hornbeck suggests the government has forfeited its

arguments against the proposed local analogs by presenting

different arguments on appeal than it advanced below. What

Hornbeck fails to realize is that the government’s arguments

cannot be forfeited — whether or not they were raised below —

because they go to subject-matter jurisdiction. The extent of the

waiver of sovereign immunity under the FTCA is coextensive

with the district court’s subject-matter jurisdiction to hear the

case. See Lehman v. Nakshian, 453 U.S. 156, 160 (1981).

Arguments against subject-matter jurisdiction cannot be waived.

See Akinseye v. D.C., 339 F.3d 970, 971 (D.C. Cir. 2003).

Given our resolution of this case, we decline to address the

additional arguments raised by the government, including its

APA-preemption theory under Jayvee Brand, Inc. v. United

States, 721 F.2d 385 (D.C. Cir. 1983).

III. Conclusion

Hornbeck has presented nothing to persuade us that D.C.

law contains any local analog which can support a claim under

the FTCA. The alleged injury in this case is grounded entirely

in federal law, not local law. Moreover, Hornbeck’s attempted

analogs simply do not apply to the circumstances presented by

this case. We therefore conclude that Hornbeck cannot bring its

claims under the FTCA. The ruling of the district court is

affirmed.

So ordered.

ROGERS, Circuit Judge, concurring in part: The court is in

agreement that the claim of Hornbeck Offshore Transporation,

LLC (“Hornbeck”) for damages under the Federal Tort Claims

Act (“FTCA”) must fail because the duties assumed by the

United States under the relevant federal statute and U.S. Coast

Guard regulations lack a local analogue under District of

Columbia law. Torts under District of Columbia law for

negligent undertaking and intentional interference with a chattel

do not support the alleged violations of which Hornbeck

complains. See Op. at 8-11. I write, therefore, only to point out

that neither Supreme Court nor this court’s precedent holds that

an FTCA claim is viable only if it exists entirely independently

from federal statutory or regulatory duties. See United States v.

Olson, 546 U.S. 43 (2005); Art Metal-USA, Inc. v. United States,

753 F.2d 1151 (D.C. Cir. 1985). To the extent the court

suggests otherwise, it goes, unnecessarily, beyond precedent.

The FTCA provides that “The United States shall be liable,

respecting the provisions of this title relating to tort claims, in

the same manner and to the same extent as a private individual

under like circumstances, but shall not be liable for interest prior

to judgment or for punitive damages.” 28 U.S.C. § 2674. See

also id. § 1346(b)(1) (authorizing private tort actions against the

United States “under circumstances where the United States, if

a private person, would be liable to the claimant in accordance

with the laws of the place where the act or omission occurred”).

Thus, in Art Metal, this court held that the FTCA will recognize

liability for violations of federal law only if “the duties set forth

in the federal law are analogous to those imposed under local

tort law.” Art Metal, 753 F.2d at 1158; Op. at 8. In other words,

federal statutes and regulations are not irrelevant to the inquiry

and may provide “evidence that the government has assumed

duties analogous to those recognized by local tort law,” Art

Metal, 753 F.2d at 1158, and/or “the standard of care against

which the government’s conduct should be assessed,” id. at

1159. The court observed that such evidence may even result in

the conclusion that the violation constituted negligence per se

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under local law. Id.

This approach is consistent with the Supreme Court’s

repeated admonition to lower courts not to look for exact

analogues in the FTCA context, but rather to look “further

afield,” Olson, 546 U.S. at 46, for similar, rather than identical,

torts as “the words ‘like circumstances’ do not restrict a court’s

inquiry to the same circumstances,” id. (citing Indian Towing

Co. v. United States, 350 U.S. 61, 64 (1955)). See also

Rayonier, Inc. v. United States, 352 U.S. 315, 318-319 (1957).

In Olson, the Supreme Court discussed Indian Towing and

explained, “[p]rivate individuals, who do not operate

lighthouses, nonetheless may create a relationship with third

parties that is similar to the relationship between a lighthouse

operator and a ship dependent on the lighthouse’s beacon.” 546

U.S. at 47 (citing Indian Towing, 350 U.S. at 64-65, 69).

Consistent with this instruction, the proper understanding of the

dispositive consideration in Art Metal was not that the duty

violated existed only under federal law, but rather that the court

could not identify, nor had the plaintiff proffered, an analogous

duty under local law. Despite a lengthy discussion of the

relationship between the FTCA requirement that federal legal

duties correspond to some local law, Art Metal, 753 F.2d at

1156-59, the court’s decisive analysis appears when it examines

the proffered local analogues and finds none viable. Id. at 1159.

The court’s emphasis today on the Coast Guard’s violation

of a federal law, Op. Part II.A., is therefore misplaced. The

question of whether the Coast Guard violated federal law was

decided in Hornbeck Offshore Transp., LLC v. U.S. Coast

Guard, 424 F. Supp.2d 37 (D.D.C. 2006). The question now

before this court is whether there is an analogue under District

of Columbia law to the duties imposed on the Coast Guard

under the federal statute and regulations: if there is, then

Hornbeck may be able to recover the damages it seeks; if there

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is not, it cannot. Yet the court would reject Hornbeck’s appeal

on the different ground that “the only basis for Hornbeck’s claim

is a federal statute, not any state or local law.” Op. at 5. The

court here thus appears to imply an exception for actions that are

uniquely governmental. But, as the court notes in Part II.B, Op.

at 8, the Supreme Court has rejected the notion of an automatic

exception to FTCA liability for “unique governmental

functions,” Olson, 512 U.S. at 45, and in Olson specifically

rejected as “too narrow,” id. at 46, the Ninth Circuit’s premise

that “federal mine inspections being regulatory in nature are

such unique governmental functions, since there is no private

sector analogue for mine inspections,” id. at 45 (internal

quotations omitted). See also Rayonier, 352 U.S. at 318-319;

Indian Towing, 350 U.S. 61, 64 (1955). The Court then cited

with approval cases where five circuit courts of appeals

analyzed proffered local tort analogues. Olson, 546 U.S. at 47

(citing Dorking Genetics v. United States, 76 F.3d 1261 (2nd

Cir. 1996); Florida Auto Auction of Orlando, Inc. v. United

States, 74 F.3d 498 (4th Cir. 1996); Ayala v. United States, 49

F.3d 607 (10th Cir. 1995); Myers v. United States, 17 F.3d 890

(6th Cir. 1994); Howell v. United States, 932 F.2d 915 (11th Cir.

1991)). Further, in each of the cases this court now cites for the

proposition 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,” Op. at 6 (alterations in original)

(citing Sea Air Shuttle Corp. v. United States, 112 F.3d 532 (1st

Cir. 1997); United States v. Agronics, Inc., 164 F.3d 1343 (10th

Cir. 1999); Johnson v. Sawyer, 47 F.3d 716 (5th Cir. 1995) (en

banc)), the courts considered and rejected the proffered tort

analogues inasmuch as there could be no automatic exemption

for uniquely governmental functions, see Sea Air Shuttle, 112

F.3d at 536; Agronics, 164 F.3d at 1346; Johnson, 47 F.3d at

728-738. In any event, these decisions predate Olson, which

represents the Supreme Court’s most recent exhortation of the

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relevant law in this area.

Because the salient point is that the federal duties at issue

are not analogous to the duties under District of Columbia law

on which Hornbeck relies, I would affirm the judgment for the

United States not because Hornbeck suffered an injury under a

federal statute, but rather because Hornbeck failed to proffer a

local tort analogue that was sufficiently analogous to the Coast

Guard’s unlawful conduct. While the fact that the Coast Guard

was “carry[ing] out a [federal] statutory duty in the conduct of

its own affairs” might raise a red flag that a viable local

analogue will not exist, “the pertinent inquiry is whether the

duties set forth in the federal law are analogous to those imposed

under local tort law.” Op. at 8; Olson, 546 U.S. at 47; Art Metal,

753 F.3d at 1159. On this point, and on the point that Hornbeck

has identified no local analogue to the Coast Guard’s duties at

issue, Op. at 8-11, there is unanimity.