Now before the Court comes defendant United States of America's motion  to dismiss for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) or, in the alternative, for failure to state a claim pursuant to Rule 12(b)(6). Upon consideration of the motion, plaintiff's opposition, the reply, the entire record herein, and applicable law, the Court finds that the motion to dismiss will be GRANTED.
Plaintiff Hornbeck Offshore Transportation, LLC ("Hornbeck") is a limited liability company that owns and operates oil transport vehicles, including the tank barge at issue in this dispute, the "ENERGY 8701." (Compl. ¶ 4.) The United States Coast Guard administers the Oil Pollution Act of 1990*fn1 ("OPA") on behalf of defendant the United States of America ("Coast Guard" or "Government"). OPA requires that all newly constructed tank vessels engaged in marine transportation be constructed with double hulls. 46 U.S.C. § 3703a(a). OPA also requires that existing single hull tank vessels be retrofitted with double hulls to qualify for operation on waters of the United States or of the Exclusive Economic Zone of the United States. Id. § 3703a(c). Non-retrofitted tank vessels must be phased out of service in accordance with a statutory schedule based on gross tonnage, hull design, and construction date of the subject vessel. Id. § 3703a(c)(3). A single hull vessel of the ENERGY 8701's age is subject to phase-out on January 1, 2005 if it weighs at least 5,000 gross tons. See id. § 3703a(c)(3)(A). If it weighs less than 5,000 gross tons, the applicable phase-out date is January 1, 2015. See id. § 3703a(c)(2).
The United States recognizes two measurement systems for calculating gross tonnage. See id. § 3706a(e)(1). The two methods are the "Regulatory" measurement system, see 46 U.S.C. § 14501 et seq., and the "Convention" measurement system, see id. § 14301 et seq. Typically, the Convention system results in a higher gross tonnage calculation than the Regulatory system. See Hornbeck Offshore Transp., LLC v. United States Coast Guard, 424 F. Supp. 2d 37, 40 (D.D.C. 2006) (Kollar-Kotelly, J.) [hereinafter Hornbeck I].*fn2
On August 25, 1976, the ENERGY 8701, which had been built earlier that year, received a gross tonnage measurement of 5,323.19 tons from the Coast Guard using the Regulatory system. Id. at 41. Plaintiff acquired the ENERGY 8701 in 2001.*fn3 Id. In 2004, in connection with a planned commercial voyage, plaintiff was compelled by international law to obtain a Convention measurement for its vessel. See id. Accordingly, in February 2004, the American Bureau of Shipping ("ABS") determined that the vessel's gross tonnage was 4,660 tons. See id. The ABS issued an International Tonnage Certificate for the ENERGY 8701 and delivered the certificate to the Coast Guard. Id. Given that the vessel received a gross tonnage certificate of less than 5,000 tons, plaintiff requested that the Coast Guard establish a phase-out date of January 1, 2015 rather than January 1, 2005. Id. On March 29, 2004, the Coast Guard, relying on its interpretation of a 1997 OPA amendment*fn4 designed to prevent vessel owners from circumventing OPA by employing various strategies to reduce the gross tonnage of their vessels, issued an initial decision denying plaintiff's request. Id. at 42; (see Mot. to Dismiss at 5.) Plaintiff appealed this decision and, on September 15, 2004, the Coast Guard affirmed its denial. Hornbeck I, 424 F. Supp. 2d at 42. Plaintiff then filed its Hornbeck I complaint on October 8, 2004, and sought relief pursuant to the Administrative Procedure Act ("APA"). Id. While its complaint was pending, plaintiff, in compliance with the Coast Guard's decision, took the ENERGY 8701 out of service. (See Compl. ¶ 23.)
In Hornbeck I, the court determined that under OPA's plain language owners may opt to employ either the Convention or Regulatory measurement system, and that the Coast Guard had no authority to prevent recognition of the February 2004 gross tonnage measurement of 4,660 tons for the purposes of setting the ENERGY 8701's phase-out date. Id. at 57. The court, in granting summary judgment in favor of Hornbeck on March 27, 2006, concluded that pursuant to the APA "the Agency's refusal to apply the plain language of Section 3703a(e), the entire [OPA] scheme, and the tonnage measurement laws to Plaintiff's vessel was arbitrary, capricious, and otherwise not in accordance with the law . . . ." Id. at 58. On remand, the Coast Guard recognized the lower weight measurement and accordingly assigned the January 1, 2015 phase-out date to the ENERGY 8701. (Compl. ¶ 38.)
Hornbeck I conclusively addressed the issue of the Coast Guard's arbitrary and capricious statutory interpretation. That case did not however entertain the issue of whether Hornbeck was entitled to damages incurred as a result of the Coast Guard's action.*fn5
Accordingly, on September 12, 2006, plaintiff presented an administrative claim to the Coast Guard for damages pursuant to the Federal Tort Claims Act ("FTCA"). (See Administrative Claim, Ex. 7 to Opp.) On February 21, 2007, the Coast Guard denied this claim and stated that "the United States has not waived sovereign immunity for tort claims based on the Coast Guard's exercise of discretion in making a vessel certification decision." (See Denial, Ex. 8 to Opp.)
Plaintiff filed this suit on June 8, 2007, seeking damages pursuant to the FTCA. The Government now asks this Court to dismiss plaintiff's claim based on three theories: (1) the Government's limited waiver of sovereign immunity under the FTCA does not extend to plaintiff's suit here because there is no private party analog at local law for the Coast Guard's unlawful OPA interpretation; (2) the doctrine of claim preclusion bars plaintiff's FTCA suit; and, (3) the statute of limitations has run on plaintiff's claim.
A. Legal Standard: Motion to Dismiss
Defendant moves to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. When a party files a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), "the plaintiff[ ] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction." Biton v. Palestinian Interim Self-Gov't Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004). A court considering a motion to dismiss for lack of jurisdiction must construe plaintiffs' complaint in plaintiffs' favor, accepting all inferences that can be derived from the facts alleged. Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), this Court will dismiss a claim if the plaintiff fails to plead "enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). This Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (citing Kowal v. ...