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.
2
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
5
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
6
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,
7
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[]
8
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,
9
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:
10
“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.
11
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
2
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
3
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
4
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.