Boudreau v. United States

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 -