Boudreau v. United States

¶5RHESA HAWKINS BARKSDALE, Circuit Judge:

¶6At 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, 106 S.Ct. 3116, 3122, 92 L.Ed.2d 483 (1986), we AFFIRM.

¶7I.

¶8On 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

¶9Upon 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.

¶10II.

¶11Boudreau 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 burden of demonstrating jurisdiction. Lowe v. Ingalls Shipbuilding, A Div. of Litton Sys., Inc., 723 F.2d 1173, 1177 (5th Cir.1984).

¶12Section 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, 109 S.Ct. 1312, 103 L.Ed.2d 581 (1989). At issue, *83then, is whether his injuries were “from or by ... flood waters”.

¶13Guiding 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. 16, 30, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953). Concomitantly, there must be a “clear relinquishment of sovereign immunity to give jurisdiction for tort actions”. Id. at 31, 73 S.Ct. at 965. This principle is all the more in focus when, as here, a clear reaffirmation of immunity is in play.4

¶14As our court has recognized, “[t]he Supreme Court has given [§ 702c] broad meaning based on the language and legislative history of the section”. Mocklin n Orleans Levee Dist., 877 F.2d 427, 428-29 (5th Cir. 1989) (citing United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120, 92 L.Ed.2d 483 (1986)). Indeed, the Court observed in James that “[i]t is difficult to imagine broader language”, 478 U.S. at 604, 106 S.Ct. at 3121, and concluded that “Congress clearly sought to ensure beyond doubt that sovereign immunity would protect the Government from ‘any1 liability associated with flood control.” Id. at 608, 106 S.Ct. at 3122.5 The breadth of the Court’s interpretation of § 702c is undeniable.6

¶15Notwithstanding the broad language of James, there is disagreement among the circuits on the application of § 702c. Hiersche v. United States, 503 U.S. 923, 112 S.Ct. 1304, 117 L.Ed.2d 525 (1992) (Stevens, J.) (recognizing, but refusing to resolve circuit *84split), denying cert. to 933 F.2d 1014 (9th Cir.1991). Three examples suffice.

¶16The 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

¶17In our circuit, the analysis is fact-specific. See Mocklin, 877 F.2d at 429-30 (applying fact-specific analysis; deciding only 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.

¶18James included “ ‘management’ of a flood control project” within the ambit of activity associated with flood control. 478 U.S. at 609-10, 106 S.Ct. at 3123-24.10 In turn, the district court based its decision to apply § 702c immunity in this ease 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 Bou-dreau’s injury and flood control.

¶19Boudreau 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. 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, 106 S.Ct. at 3121 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.)

¶20Viewed in isolation, the Court’s citation to Hayes appears to support Boudreau; but, on *85close 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, 106 S.Ct. at 3121. 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 um-elated” to flood control. James, 478 U.S. at 605 n. 7, 106 S.Ct. at 3121 n. 7. And, Morici specifically rejected the Hayes approach. Morici, 681 F.2d at 647-48.11

¶21Furthermore, as quoted in note 10, supra, the Court concluded in James that even the Government’s failure to warn recreational visitors of dangerous conditions fell within “the ‘management’ of a flood control project”. 478 U.S. at 610, 106 S.Ct. at 3123-24. 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 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”.

¶22Notwithstanding 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 § 702c 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’ ears 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.

¶23Fryman v. United States, 901 F.2d 79, 81 (7th Cir.), cert. denied, 498 U.S. 920, 111 S.Ct. 295, 112 L.Ed.2d 249 (1990); Cox, 827 *86F.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 § 702c, 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 '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

¶24III.

¶25For the foregoing reasons, the judgment is AFFIRMED.

¶41JERRY E. SMITH, Circuit Judge,

¶42dissenting:

¶43“[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, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979). The relevant statutory provision for this ease 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.

¶4433 U.S.C. § 702c.

¶45The Supreme Court acknowledged, and the majority emphasizes, the broad nature of this language. See United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120-21, 92 L.Ed.2d 483 (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.”

¶46The 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 ease 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, 106 S.Ct. at 3121 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.

¶47It 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.”

¶48The 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, 111 S.Ct. 295, 112 L.Ed.2d 249 (1990). Instead, the majority *87claims 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.’ ”'

¶49The 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.

¶50Id. at 609-10,106 S.Ct. at 3123-24 (emphasis added). Neither this passage nor the facts of James support the conclusion that a nexus between the damage and flooding has been jettisoned.

¶51The litigation in James was the result of the consolidation of two separate accident cases. In both eases 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, 106 S.Ct. at 3118-20. There is no doubt that the injuries were caused by flood waters.2

¶52Despite 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.”

¶53This 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.