Orff v. United States

(Slip Opinion) OCTOBER TERM, 2004 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

ORFF ET AL. v. UNITED STATES ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

No. 03–1566. Argued February 23, 2005—Decided June 23, 2005
Petitioner California farmers and farming entities purchase water from
respondent Westlands Water District, which receives its water from
the United States Bureau of Reclamation under a 1963 contract be-
tween Westlands and the Bureau. In 1993, Westlands and other wa-
ter districts sued the Bureau for reducing their water supply. Peti-
tioners, though not parties to the 1963 contract, intervened as
plaintiffs. After negotiations, all parties except petitioners stipulated
to dismissal of the districts’ complaint. Petitioners pressed forward
with, as relevant here, the claim that the United States had breached
the contract. They contended that they were third-party beneficiar-
ies entitled to enforce the contract and that the United States had
waived its sovereign immunity from breach of contract suits in a pro-
vision of the Reclamation Reform Act of 1982, 43 U. S. C. §390uu.
The District Court ultimately held that petitioners were neither con-
tracting parties nor intended third-party beneficiaries of the contract
and therefore could not benefit from §390uu’s waiver. The Ninth Cir-
cuit affirmed in relevant part.
Held: Section 390uu does not waive the United States’ sovereign im-
munity from petitioners’ suit. The provision grants consent “to join
the United States as a necessary party defendant in any suit to adju-
dicate” certain rights under a federal reclamation contract. (Empha-
sis added.) A waiver of sovereign immunity must be strictly con-
strued in favor of the sovereign. See, e.g., Department of Army v. Blue
Fox, Inc., 525 U. S. 255, 261. In light of this principle, §390uu is best in-
terpreted to grant consent to join the United States in an action be-
tween other parties when the action requires construction of a reclama-
tion contract and joinder of the United States is necessary. It does not
permit a plaintiff to sue the United States alone.
2 ORFF v. UNITED STATES

Syllabus

This interpretation draws support from §390uu’s use of the words
“necessary party,” a term of art whose meaning calls to mind Federal
Rule of Civil Procedure 19(a)’s requirements for joinder of parties. The
interpretation also draws support from the contrast between §390uu’s
language, which speaks in terms of joinder, and the broader phrasing of
other statutes, e.g., the Tucker Act, that waive immunity from suits
against the United States alone. Petitioners’ suit, brought solely
against the United States and its agents, is not an attempt to “join the
United States as a necessary party defendant” under §390uu. Pp. 5–8.
358 F. 3d 1137, affirmed.

THOMAS, J., delivered the opinion for a unanimous Court.
 Cite as: 545 U. S. ____ (2005) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 03–1566
_________________

FRANCIS A. ORFF, ET AL., PETITIONERS v. UNITED
STATES ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 23, 2005]

JUSTICE THOMAS delivered the opinion of the Court.
Petitioners are individual farmers and farming entities
in California who purchase water from respondent West-
lands Water District (Westlands or District). Westlands
receives its water from the United States Bureau of Rec-
lamation (Bureau) under a 1963 contract between West-
lands and the Bureau. Petitioners contend that the Bu-
reau breached the contract in 1993 when it reduced the
water supply to Westlands. Although petitioners are not
parties to the contract, they claim that they are entitled to
enforce it as intended third-party beneficiaries; that the
United States waived its sovereign immunity from suits
for breach of contract in a provision of the Reclamation
Reform Act of 1982, §221, 96 Stat. 1271, 43 U. S. C. §390uu;
and hence that they may sue the United States in federal
district court for breach of the 1963 contract. We conclude
that, in enacting §390uu, Congress did not consent to
petitioners’ suit.
I
The Reclamation Act of 1902 set in motion a massive
program to provide federal financing, construction, and
2 ORFF v. UNITED STATES

Opinion of the Court

operation of water storage and distribution projects to
reclaim arid lands in many Western States. California v.
United States, 438 U. S. 645, 650 (1978). The California
Central Valley Project (CVP), a system of dams, reservoirs,
levees, canals, pumping stations, hydropower plants, and
other infrastructure, distributes water throughout Califor-
nia’s vast Central Valley. United States v. Gerlach Live
Stock Co., 339 U. S. 725, 733 (1950).
The Bureau, located in the Department of the Interior,
administers the CVP. In accordance with its standard
practice for federal reclamation projects, the Bureau holds
permits to appropriate water from the relevant state
agency, here the California State Water Resources Control
Board. See California, supra, at 652, and n. 7. The Bu-
reau distributes the water in accordance with its statutory
and contractual obligations. It contracts with state irriga-
tion districts to deliver water and to receive reimburse-
ment for the costs of constructing, operating, and main-
taining the works.
In 1963, the United States agreed to a 40-year water
service contract with Westlands, a political subdivision of
the State of California. The 1963 contract provided,
among other things, that the United States would furnish
to the District specified annual quantities of water, App.
34–36, and that the District would accept and pay for the
water at a maximum rate of $8 per acre-foot, id., at 38.
Since 1978, the contract has generated extensive litiga-
tion. See Barcellos & Wolfsen, Inc. v. Westlands Water
Dist., 899 F. 2d 814, 817 (CA9 1990); O’Neill v. United
States, 50 F. 3d 677, 681 (CA9 1995); 358 F. 3d 1137, 1141
(CA9 2004) (case below). In 1982, Congress enacted the
Reclamation Reform Act, which included 43 U. S. C.
§390uu, the waiver of sovereign immunity at issue here.
The present case arose from water delivery reductions
in the early 1990’s. Those reductions stemmed from envi-
ronmental obligations imposed on the Bureau by the 1992
 Cite as: 545 U. S. ____ (2005) 3

Opinion of the Court

enactment of the Central Valley Project Improvement Act
(CVPIA), 106 Stat. 4706. The CVPIA directed the Secre-
tary of the Interior to “operate the [CVP] to meet all obli-
gations under . . . the Federal Endangered Species Act”
(ESA), §3406(b), and to dedicate annually a certain
amount of CVP water to implement fish, wildlife, and
habitat restoration, §3406(b)(2). In the early 1990’s, the
National Marine Fisheries Service listed the Sacramento
River winter-run chinook salmon as a threatened species
under the ESA, see 55 Fed. Reg. 46523 (1990); 50 CFR
§227.4(e) (1991); and, in 1993, the United States Fish and
Wildlife Service listed the delta smelt as a threatened
species, see 58 Fed. Reg. 12854–12855; 50 CFR §17.11.
The Bureau concluded that pumps used to deliver water
south of the Sacramento-San Joaquin Delta could harm
these species. Brief for United States 10–11, and n. 7. To
avert possible harm to these species and other wildlife, the
Bureau concluded that it needed to reduce the water
delivery. In the 1993–1994 water year, the Bureau re-
duced by 50 percent the contractual delivery of CVP water
to water districts south of the Delta, including Westlands.
Id., at 10; see also O’Neill, supra, at 681.
In 1993, Westlands and several other water districts
challenged the Bureau’s 50-percent delivery reduction
under the Administrative Procedure Act, the ESA, the
National Environmental Policy Act of 1969, and the Due
Process and Takings Clauses of the Fifth Amendment.
Westlands Water Dist. v. United States Dept. of Interior,
Bureau of Reclamation, 850 F. Supp. 1388, 1394–1395 (ED
Cal. 1994). Petitioner landowners and water users inter-
vened as plaintiffs. Respondent Natural Resources De-
fense Council and other fishing and conservation organi-
zations intervened as defendants. Id., at 1394.
Ultimately, following negotiations among the State of
California, the Federal Government, and urban, agricul-
tural, and environmental interests, the water districts and
4 ORFF v. UNITED STATES

Opinion of the Court

all parties except petitioners stipulated to the dismissal of
the districts’ complaint. 358 F. 3d, at 1142; App. to Pet.
for Cert. 25a; Brief for United States 11.1
Petitioners pressed forward with numerous claims. The
District Court dismissed some of them and granted sum-
mary judgment for the Government on others, see 358
F. 3d, at 1142, leaving only the claim at issue here: that
the United States had breached the 1963 contract by
reducing the delivery of water and was liable for money
damages. Petitioners contended that the United States
had waived its sovereign immunity from their suit in the
Reclamation Reform Act, 43 U. S. C. §390uu. The District
Court initially held that petitioners were intended third-
party beneficiaries and that the language of §390uu was
broad enough to allow their suit, App. to Pet. for Cert. 26a,
but on reconsideration changed its view. It held that, in
light of intervening circuit authority, Klamath Water
Users Protective Assn. v. Patterson, 204 F. 3d 1206 (CA9
1999), petitioners were neither contracting parties nor
intended third-party beneficiaries of the 1963 contract,
and therefore could not benefit from §390uu’s waiver.
App. to Pet. for Cert. 27a–34a.
The Court of Appeals affirmed in relevant part. It
agreed with the District Court’s reading of the 1963 con-
tract and §390uu in light of Klamath. 358 F. 3d, at 1144–
1147. The Court of Appeals noted that its decision might
be at odds with H. F. Allen Orchards v. United States, 749
F. 2d 1571 (CA Fed. 1984), which had reached the opposite
conclusion with respect to farmers who belonged to an
irrigation district in Washington. 358 F. 3d, at 1147, n. 5.
We granted certiorari. 543 U. S. __ (2004).
II
This dispute centers on §390uu, which waives the
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1 Westlands subsequently intervened on appeal.
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Opinion of the Court

United States’ sovereign immunity for certain purposes.
Section 390uu provides:
“Consent is given to join the United States as a neces-
sary party defendant in any suit to adjudicate, con-
firm, validate, or decree the contractual rights of a
contracting entity and the United States regarding
any contract executed pursuant to Federal reclama-
tion law. The United States, when a party to any suit,
shall be deemed to have waived any right to plead
that it is not amenable thereto by reason of its sover-
eignty, and shall be subject to judgments, orders, and
decrees of the court having jurisdiction, and may ob-
tain review thereof, in the same manner and to the
same extent as a private individual under like cir-
cumstances. Any suit pursuant to this section may be
brought in any United States district court in the
State in which the land involved is situated.”
Petitioners contend that they are intended third-party
beneficiaries of the 1963 contract and therefore entitled to
enforce the contract. Hence, they claim, their suit is one
“to adjudicate . . . the contractual rights of a contracting
entity and the United States” within the meaning of
§390uu. This argument founders on the principle that a
waiver of sovereign immunity must be strictly construed
in favor of the sovereign. See, e.g., Department of Army v.
Blue Fox, Inc., 525 U. S. 255, 261 (1999); Lane v. Peña, 518
U. S. 187, 192 (1996). Construing §390uu in light of this
principle, we find it insufficient to waive sovereign
immunity.
Section 390uu grants consent “to join the United States
as a necessary party defendant in any suit to adjudicate”
certain rights under a federal reclamation contract. (Em-
phasis added.) This language is best interpreted to grant
consent to join the United States in an action between
other parties—for example, two water districts, or a water
6 ORFF v. UNITED STATES

Opinion of the Court

district and its members—when the action requires con-
struction of a reclamation contract and joinder of the
United States is necessary. It does not permit a plaintiff
to sue the United States alone.
Section 390uu’s use of the words “necessary party”
supports this interpretation. Before 1966, the term “nec-
essary” described the class of parties now called “Persons
to be Joined if Feasible” under Federal Rule of Civil Pro-
cedure 19(a). See Provident Tradesmens Bank & Trust Co.
v. Patterson, 390 U. S. 102, 116–118, and n. 12 (1968) (re-
counting terminology change). Rule 19(a) requires a court
to order joinder of a party if
“(1) in the person’s absence complete relief cannot be
accorded among those already parties, or (2) the per-
son claims an interest relating to the subject of the ac-
tion and is so situated that the disposition of the ac-
tion in the person’s absence may (i) as a practical
matter impair or impede the person’s ability to protect
that interest or (ii) leave any of the persons already
parties subject to a substantial risk of incurring dou-
ble, multiple, or otherwise inconsistent obligations by
reason of the claimed interest.”
Though the Rule no longer describes such parties as “nec-
essary,” “necessary party” is a term of art whose meaning
parallels Rule 19(a)’s requirements. See Black’s Law
Dictionary 928 (5th ed. 1979) (defining “necessary parties”
as “those persons who must be joined in an action because,
inter alia, complete relief cannot be given to those already
parties without their joinder,” and citing Fed. Rule Civ.
Proc. 19(a)).
The phrase “join . . . as a necessary party defendant” in
§390uu thus calls to mind Rule 19(a)’s requirements. We
need not decide here whether the phrase limits the waiver
of sovereign immunity to cases in which the United States
could be joined under Rule 19(a). Regardless, the tradi-
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Opinion of the Court

tional concept of joinder of a necessary party supports
interpreting §390uu to permit joinder of the United States
in an action rather than initiation of a suit solely against
it.
Our conclusion draws force from the contrast between
§390uu’s language, which speaks in terms of joinder, and
the broader phrasing of statutes that waive immunity
from suits against the United States alone. For example,
the Tucker Act grants the United States Court of Federal
Claims “jurisdiction to render judgment upon any claim
against the United States founded . . . upon any express or
implied contract with the United States.” 28 U. S. C.
§1491(a)(1).2 The Little Tucker Act grants district courts
original jurisdiction, concurrent with the Court of Federal
Claims, over “[a]ny . . . civil action or claim against the
United States, not exceeding $10,000 in amount, founded
. . . upon any express or implied contract with the United
States.” §1346(a)(2). The contrast between 43 U. S. C.
§390uu and the broader language of these statutes con-
firms that our construction ascribes the proper meaning to
the limiting phrase “join . . . as a necessary party defen-
dant” in §390uu.
Petitioners’ suit cannot proceed under our interpretation
of §390uu. For purposes of that provision, petitioners
sought to sue the United States alone: They named as
defendants the United States itself, as well as various
federal entities and officials they viewed as responsible for
the water delivery reduction (for example, the Bureau, the
Fish and Wildlife Service, and the Secretary of the Inte-
rior). Petitioners’ suit, brought solely against the United
States and its agents, is not an attempt to “join the United
States as a necessary party defendant.” §390uu (emphasis
——————
2 The District Court invited petitioners several times to transfer their

damages claims to the Court of Federal Claims, but petitioners did not
accept those invitations. App. to Pet. for Cert. 22a.
8 ORFF v. UNITED STATES

Opinion of the Court

added).3
* * *
We hold that §390uu does not waive immunity from
petitioners’ suit: The statute does not waive immunity
from suits directly against the United States, as opposed
to joinder of the United States as a necessary party defen-
dant to permit a complete adjudication of rights under a
reclamation contract. We therefore affirm the judgment of
the Court of Appeals.
It is so ordered.

——————
3 We need not reach the contentions, advanced by respondents, that

§390uu neither unequivocally grants consent to a money damages
remedy, Brief for United States 23–25; Brief for Natural Resources
Defense Council et al. 20–21, nor unequivocally grants consent to suit
by noncontracting entities, id., at 22–23, and n. 8; Brief for Westlands
Water District 44–46. As explained above, we find §390uu otherwise
insufficiently clear to grant consent to petitioners’ suit.