Boudreau v. United States ( 1995 )


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  •                       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 -