UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 94-10636 _____________________
DANIEL A. BOUDREAU,
Plaintiff-Appellant,
VERSUS
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________________________________________
Appeal from the United States District Court for the Northern District of Texas _____________________________________________________ (May 12, 1995)
Before SMITH and BARKSDALE, Circuit Judges, and FITZWATER,1 District Judge.
RHESA HAWKINS BARKSDALE, Circuit Judge:
At issue is whether the Flood Control Act of 1928, 33 U.S.C.
§ 702c ("No liability ... [to] United States for any damages from
... flood waters ...."), provides immunity for the United States
from the alleged negligence of the Coast Guard Auxiliary in
attempting to tow a stranded recreational vessel on a flood control
lake. Finding that this activity was "associated with flood
control", United States v. James, 478 U.S. 597, 608 (1986), we
AFFIRM.
1 District Judge of the Northern District of Texas, sitting by designation. I.
On July 5, 1992, Daniel Boudreau and a friend took Boudreau's
boat, the SHAMAN, out on Lake Lewisville, Texas. After
experiencing engine trouble, Boudreau called for assistance from
the Coast Guard Auxiliary, and was told to anchor his vessel. A
Coast Guard Auxiliary vessel, the SIMPLE PLEASURE, arrived to
assist, and its operator, Thomas Spalding, and his crewmember gave
verbal towing instructions to Boudreau.2 After securing a tow
line, Boudreau was instructed to either lift anchor or cut its
line. While attempting to lift anchor, the anchor line broke free
of its mount and swung into Boudreau's leg, causing severe injury.3
Upon Boudreau filing an action against the United States, the
Government, inter alia, moved, pursuant to Fed. R. Civ. P.
12(b)(1), to dismiss for lack of subject matter jurisdiction,
claiming immunity under § 702c of the Flood Control Act of 1928.
The motion was granted.
II.
Boudreau asserts that, under the facts of this case, § 702c
immunity does not lie. We review de novo a Rule 12(b)(1)
dismissal, e.g., EP Operating Ltd. Partnership v. Placid Oil Co.,
26 F.3d 563, 566 (5th Cir. 1994), but with Boudreau having the
2 Observing that winds were at least 30 knots, with waves of three to four feet, Spalding directed Boudreau and his friend to put on life jackets. 3 The Government maintains that the anchor line broke free when the wind and waves hit the SIMPLE PLEASURE, causing it to turn sharply and pull the tow line. Boudreau denies that the conditions on the Lake contributed to the accident.
- 2 - burden of demonstrating jurisdiction. Lowe v. Ingalls
Shipbuilding, A div. of Litton Sys., Inc., 723 F.2d 1173, 1177 (5th
Cir. 1984).
Section 702c provides in relevant part: "No liability of any
kind shall attach to or rest upon the United States for any damage
from or by floods or flood waters at any place". Boudreau concedes
that the Lake is a flood control lake. See McCarthy v. United
States, 850 F.2d 558, 560 (9th Cir. 1988) (finding that Lake
Lewisville is a flood control lake), cert. denied, 489 U.S. 1052
(1989). At issue, then, is whether his injuries were "from or by
... flood waters".
Guiding our decision is the general principle that "no action
lies against the United States unless the legislature has
authorized it". Dalehite v. United States, 346 U.S. 15, 30 (1953).
Concomitantly, there must be a "clear relinquishment of sovereign
immunity to give jurisdiction for tort actions". Id. at 31. This
principle is all the more in focus when, as here, a clear
reaffirmation of immunity is in play.4
4 As discussed infra, the Supreme Court in United States v. James, 478 U.S. 597, 606-07 (1986) (footnotes omitted; brackets by Court; emphasis added) took note of the reaffirmation of immunity by § 702c:
...[W]e do not find that the legislative history of the statute justifies departure from the plain words of the statute. Indeed, on balance we think the legislative history of the Flood Control Act of 1928 reinforces the plain language of the immunity provision in § 702c.
The Flood Control Act enacted "a comprehensive ten-year program for the entire [Mississippi River] valley, embodying a general bank protection scheme,
- 3 - channel stabilization and river regulation, all involving vast expenditures of public funds." - 4 - United States v. Sponenbarger, 308 U.S. 256, 262 (1939). The Act was the Nation's response to the disastrous flood in the Mississippi River Valley in 1927. That flood resulted in the loss of nearly 200 lives and more than $200 million in property damage; almost 700,000 people were left homeless. As our court has recognized, "[t]he Supreme Court has given [§
702c] broad meaning based on the language and legislative history
of the section". Mocklin v. Orleans Levee Dist., 877 F.2d 427,
428-29 (5th Cir. 1989) (citing United States v. James, 478 U.S.
597, 604 (1986)). Indeed, the Court observed in James that "[i]t
is difficult to imagine broader language", 478 U.S. at 604, and
concluded that "Congress clearly sought to ensure beyond doubt that
sovereign immunity would protect the Government from `any'
liability associated with flood control." Id. at 608.5 The
breadth of the Court's interpretation of § 702c is undeniable.6
Notwithstanding the broad language of James, there is
disagreement among the circuits on the application of § 702c.
Hiersche v. United States, 112 S. Ct. 1304, 1305 (1992) (Stevens,
J.) (recognizing, but refusing to resolve circuit split), denying
cert. to 933 F.2d 1014. Three examples suffice.
Frear). 5 In construing § 702c in James, the Court stated:
The Act concerns flood control projects designed to carry floodwaters. It is thus clear from § 702c's plain language that the terms "flood" and "flood waters" apply to all waters contained in or carried through a federal flood control project for purposes of or related to flood control, as well as to waters that such projects cannot control.
478 U.S. at 605. 6 As the Seventh Circuit observed: "The [Supreme] Court found it hard to conceive how § 702c could have been more broadly written; we find it hard to conceive how a decision interpreting this statute could have been more broadly written." Fryman v. United States, 901 F.2d 79, 81 (7th Cir.), cert. denied, 498 U.S. 920 (1990).
- 5 - The Ninth Circuit applies the "wholly unrelated" test;
immunity is denied only when an injury is "wholly unrelated to any
Act of Congress authorizing expenditures of federal funds for flood
control, or any act undertaken pursuant to any such authorization".
Morici Corp. v. United States, 681 F.2d 645, 647 (9th Cir. 1982)
(quoting Peterson v. United States, 367 F.2d 271, 275 (9th Cir.
1966)); see also McCarthy, 850 F.2d at 562.7 On the other hand,
the Tenth Circuit "cannot agree that Congress intended to stretch
the shield of flood control immunity to the limits contemplated by
the `wholly unrelated' standard". Boyd v. United States, 881 F.2d
895, 900 (10th Cir. 1989). The Seventh Circuit would at least
grant immunity where an injury is "more likely" because of the
"activities or characteristics" of a flood control project. Bailey
v. United States, 35 F.3d 1118, 1124 (7th Cir. 1994).8
In our circuit, the analysis is fact-specific. See Mocklin,
877 F.2d at 429-30 (applying fact-specific analysis; deciding only
7 In McCarthy, the Ninth Circuit upheld immunity after the plaintiff dove into shallow water at Lake Lewisville and fractured his neck. McCarthy v. United States, 850 F.2d 558, 563 (9th Cir. 1988). The court reasoned that the creation of the flood control project at the Lake created a passive condition which led to the injuries; therefore, the injury was not "wholly unrelated" to flood control. Id. at 561-63. Likewise, the court concluded that the alleged negligence by the Government in failing to post warning signs for the benefit of recreational users of the lake was not "wholly unrelated" to flood control. Id. at 563. 8 In Fryman, the Seventh Circuit had earlier explained that it would not rule out the possibility that immunity might apply even in cases where an injury was not made more likely by flood control activities, but only happened to occur at a flood control lake. Not required to reach that question, the court declined to do so. Fryman, 901 F.2d at 82; accord Bailey v. United States, 35 F.3d 1118, 1124 (7th Cir. 1994).
- 6 - the case before it).9 As hereinafter discussed, and based on the
facts of this case, we conclude that, as per James, there is a
sufficient association between the Coast Guard Auxiliary's
activities and flood control.
James included "`management' of a flood control project"
within the ambit of activity associated with flood control. 478
U.S. at 609-610.10 In turn, the district court based its decision
to apply § 702c immunity in this case on the fact that the alleged
negligence was by the Coast Guard Auxiliary, which "is part of the
Government's management of Lake Lewisville and serves to control
the waters in a variety of capacities". Relying on James, the
district court concluded that the Auxiliary's management of the
flood control lake established the requisite nexus between
Boudreau's injury and flood control.
Boudreau challenges this conclusion, contending that the
Auxiliary's responsibilities on the Lake consisted only of water
safety management, and were therefore unrelated to flood control.
9 In Mocklin, plaintiffs' son drowned when he slipped from a sand bar into a flotation channel in Lake Pontchartrain. Mocklin v. Orleans Levee Dist., 877 F.2d 427, 428 (5th Cir. 1989). The flotation channels had been dredged to provide access for barges carrying equipment for the reinforcement of the flood control levees along the lake. Id. Finding that the channels "were inescapably part of a flood control project", our court concluded that "the [flood control] water in the flotation channel causally did contribute to the drowning of the Mocklins' son: the channel created a significant drop-off in the lake". Id. at 430. Accordingly, § 702(c) immunity applied. Id. 10 The James Court stated that "the manner in which to convey warnings, including the negligent failure to do so, is part of `management' of a flood control project". 478 U.S. at 610 (emphasis added).
- 7 - His primary support comes from note 7 to the James opinion. That
note contains a string-cite including Hayes v. United States, 585
F.2d 701, 702-03 (4th Cir. 1978). James, 478 U.S. at 605 n.7. The
parenthetical following the citation quotes a portion of Hayes,
reading: "If the plaintiff could prove damage ... as a result of
the dam's operation as a recreational facility without relation to
the operation of the dam as a flood control project, he would avoid
the absolute bar of § 702c." Id. (Emphasis added in James.)
Viewed in isolation, the Court's citation to Hayes appears to
support Boudreau; but, on close examination, it does not. First,
the note is only in reference to the Court's statement in the text
that "the waters [in issue] clearly fall within the ambit of the
statute"; that statement did not concern when immunity would not
bar liability for injury from flood waters. Id. at 605. Second,
note 7 is internally inconsistent. In the same note, and before
the citation to Hayes, the Court also cites Morici, 681 F.2d 645 at
647-48, for the proposition that immunity is available unless the
Government's activity is "wholly unrelated" to flood control.
James, 478 U.S. at 605 n.7. And, Morici specifically rejected the
Hayes approach. Morici, 681 F.2d at 647-48.11
Furthermore, as quoted in note 10, supra, the Court concluded
in James that even the Government's failure to warn recreational
11 In view of this inconsistency, the Seventh Circuit concluded: "We make nothing of the Court's citation to Hayes.... [C]iting inconsistent holdings does not endorse either." Fryman, 901 F.2d at 81. See Zavadil v. United States, 908 F.2d 334, 336 n.4 (8th Cir. 1990), cert. denied, 498 U.S. 1108 (1991); Dawson v. United States, 894 F.2d 70, 73 (3d Cir. 1990); McCarthy, 850 F.2d at 562; Cox v. United States, 827 F. Supp. 378, 381 (N.D.W.Va. 1992).
- 8 - visitors of dangerous conditions fell within "the `management' of
a flood control project". 478 U.S. at 610. Such management is
involved here.12 The creation of the flood control project resulted
in the Army Corps of Engineers being responsible for providing
water safety patrols at the Lake.13 The Corps of Engineers, in
turn, reached an agreement with the Coast Guard Auxiliary to
perform this function.14 Therefore, just as, under the facts in
James, the Government had the responsibility to warn of dangerous
water conditions, the Government had the responsibility under the
12 Many of the § 702c cases involve accidents occurring at or near hydroelectric dams at flood control projects. See, e.g., James, 478 U.S. at 599-601 (accidents at flood dams in Arkansas and Louisiana). We note with interest that, when the Auxiliary was dispatched to find Boudreau's boat, it was reported located "out by the dam". 13 The Flood Control Act of 1962 authorized the Corps of Engineers to "construct, maintain, and operate public park and recreational facilities" at flood control projects. 16 U.S.C. § 460d. Thus, upon the creation of a flood control project: "It is the policy of the Secretary of the Army, acting through the Chief of Engineers, to manage the natural, cultural and developed resources of each project in the public interest, providing the public with safe and healthful recreational opportunities ...." 36 C.F.R. § 327.1(a). 14 The Memorandum of Agreement between the Corps of Engineers and Coast Guard reads in part:
1. Responsibility[.]
A. Both the U.S. Army Corps of Engineers and the U.S. Coast Guard are responsible for administering water safety programs on inland lakes under their concurrent jurisdictions....
2. Purpose of Agreement.
A. Recognizing the above responsibilities, it is hereby granted that the purpose of this agreement is to facilitate water safety patrols by local U.S. Coast Guard Auxiliary....
- 9 - facts in this case to provide water safety patrols. In each
instance, the responsibility arose because of the establishment of
a flood control project. Likewise, in each instance, the
Government's activity is properly considered part of the
"management of a flood control project".
Notwithstanding that the Auxiliary was engaged in the
management of a flood control project, Boudreau contends, as noted,
that his injury is completely unrelated to flood control. Although
we disagree, we note the suggestion by some courts that "management
of a flood control project" may well be insufficient, standing
alone, to allow for § 702 immunity. As the Seventh Circuit
observed:
The "management of a flood control project" includes building roads to reach the beaches and hiring staff to run the project. If the Corps of Engineers should allow a walrus-sized pothole to swallow tourists' cars on the way to the beach, or if a tree trimmer's car should careen through some picnickers, these injuries would be "associated with" flood control.... Yet they would have nothing to do with management of flood waters, and it is hard to conceive that they are "damage from or by floods or flood waters" within the scope of § 702c.
Fryman v. United States, 901 F.2d 79, 81 (7th Cir.), cert. denied,
498 U.S. 920 (1990); Cox, 827 F. Supp. at 381-82. We leave for
another day whether this should influence future decisions by this
court. In any event, if the foregoing represents an over-
application of § 702, the present case is safely removed from that
realm. Here, we cannot say that Boudreau's injury has "nothing to
do with management of flood waters". His injury resulted from a
boating accident on flood control waters involving the Government's
- 10 - patrol of those waters. Assuming, without deciding, that something
more is required in addition to "management of a flood control
project", we are confident that, based on the facts at hand, this
case meets the mark.15
III.
For the foregoing reasons, the judgment is
AFFIRMED.
JERRY E. SMITH, Circuit Judge, dissenting:
"[A]s with any case involving the interpretation of a statute,
our analysis must begin with the language of the statute itself."
Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979). The
relevant statutory provision for this case states:
No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place.
33 U.S.C. § 702c.
15 The Government notes that, but for the creation of the flood control project at the Lake, Boudreau could not have been injured there. It notes also that a boating accident such as this could occur only on water. But we need not stop there. Although causation is disputed, the conditions on the Lake and the location of Boudreau's vessel certainly made an accident of this nature more probable. For example, not only did the accident occur at a flood control lake, it occurred in an area that would not have been submerged without flood control. In this regard, the Government maintains that Boudreau's anchor was caught in trees beneath the surface of the lake -- trees submerged only as the result of flood control. Furthermore, it is evident from the record that the waves, high winds, and other conditions on the lake could have contributed to the accident.
- 11 - The Supreme Court acknowledged, and the majority emphasizes,
the broad nature of this language. See United States v. James, 478
U.S. 597, 604 (1986). Specifically, the Court has emphasized the
word "any," which appears three times in the relevant provision.
Id. This case, however, does not turn on language from the
relevant provision that is modified by the word "any."
The simple question is whether the damages in this case were
"from or by floods or flood waters." I will assume that the
circumstances in this case involved "floods or flood waters" within
the meaning of the statute, though this might be disputed. See
James, 478 U.S. at 605 and n.7; Denham v. United States, 646 F.
Supp. 1021, 1026-27 (W.D. Tex. 1986) (holding that injury sustained
from flood control project's use as a recreational facility was not
subject to immunity provision of § 702c), aff'd, 834 F.2d 518 (5th
Cir. 1987).1 Immunity under § 702c simply does not apply, because
there is no reasonable construction of the plain language of this
provision by which the damage in this case was "from or by" flood
waters.
It is undisputed that the injury resulted from a Coast Guard
rescue attempt at Lake Lewisville. Water had nothing to do with
the injury, except that but for the very existence of the water,
the injury would not have occurred. This type of connection,
however, is too tenuous to be supported by a rational construction
of "from or by."
1 I realize that this point may be part and parcel of the causation analysis or vice versa. See Denham, 646 F. Supp. 1026. I concentrate on the causation point specifically, for emphasis.
- 12 - The majority admits as much by holding that the relevant nexus
is between the injury and "flood control," not flood waters. The
majority rejects the suggestion that its holding is overly broad,
i.e., that a broad reading conceivably could extend governmental
immunity to traffic mishaps or tree-trimming mistakes related to
the "management of a flood control project." See Fryman v. United
States, 901 F.2d 79, 81 (7th Cir.), cert. denied, 498 U.S. 920
(1990). Instead, the majority claims that "the present case is
safely removed from that realm. Here, we cannot say that
Boudreaus's injury has 'nothing to do with management of flood
waters.'"
The word "management" appears nowhere in the relevant
provision of § 702c, however. It is gleaned from the following
passage in James:
[Plaintiffs] also argue, in the alternative, that even if 702c is intended to grant immunity in connection with flood control projects, the Federal Government is not entitled to immunity here because their injuries arose from Government employees' alleged mismanagement of recreational activities wholly unrelated to flood control. In support of this argument they point to a "fundamental principle of immunity" that the "sphere or protected activity must be narrowly limited by the purpose for which the immunity was granted." We think, however, that the manner in which to convey warnings, including the negligent failure to do so, is part of the "management" of a flood control project. And as noted in n. 7, supra, the Court of Appeals found that the release of waters at the [accident sites] was clearly related to flood control.
Id. at 609-10 (emphasis added). Neither this passage nor the facts
of James support the conclusion that a nexus between the damage and
flooding has been jettisoned.
- 13 - The litigation in James was the result of the consolidation of
two separate accident cases. In both cases the accidents occurred
in the reservoirs of federal flood control projects. In both,
recreational users were swept through retaining structures and
either drowned or injured when the structures were opened to
release water to control flooding. Id. at 599-602. There is no
doubt that the injuries were caused by flood waters.2
Despite its denial, under the majority's reading of the
"management" language from James, a negligent failure to warn a
motorist of a road hazard, resulting in an accident within the
confines of a recreational area that is part of a flood control
project, would give rise to immunity under the Flood Control Act,
because such a "failure to do so [] is part of the 'management' of
a flood control project."
This passage from James must be construed in light of the
facts of James and the plain language of § 702c. The predicate of
the Court's language was injuries plainly caused by flood waters.
This threshold is simply not met in the instant case. As indicated
above, the Supreme Court acknowledged that the language of § 702c
is broad; it did not indicate, however, that the provision should
be read as "any damage related to the management of a federal flood
control project." Accordingly, because the alleged damages in this
case were not caused by flooding, I respectfully dissent.
2 As the majority indicates, the accident in this circuit's case, Mocklin v. Orleans Levee Dist., 877 F.2d 427 (5th Cir. 1989), was the drowning of the son of the plaintiffs.
- 14 -