Boudreau v. U.S.

• Decision Date: 12 May 1995
• Docket Number: No. 94-10636,94-10636
• Citation: 53 F.3d 81
• Parties: , 63 USLW 2731 Daniel A. BOUDREAU, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 81

53 F.3d 81

1995 A.M.C. 1890, 63 USLW 2731

Daniel A. BOUDREAU, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 94-10636.

United States Court of Appeals, Fifth Circuit.

May 12, 1995.

Rehearing Denied June 13, 1995.

Richard L. Bufkin, Mark A. Nacol, Michael P. Wortham, Dallas, TX, for appellant.

Gary W. Allen, Keith B. Letourneau, U.S. Dept. of Justice, Torts Branch Civ. Div., Washington, DC, for appellee.

Appeal from the United States District Court for the Northern District of Texas.

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. Sec. 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.

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 Sec. 702c of the Flood Control Act of 1928. The motion was granted.

II.

Boudreau asserts that, under the facts of this case, Sec. 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).

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, 109 S.Ct. 1312, 103 L.Ed.2d 581 (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, 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

As our court has recognized, "[t]he Supreme Court has given [Sec. 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, 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 'any' liability associated with flood control." Id. at 608, 106 S.Ct. at 3122. ⁵ The breadth of the Court's interpretation of Sec. 702c is undeniable. ⁶

Notwithstanding the broad language of James, there is disagreement among the circuits on the application of Sec. 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 split), denying cert. to 933 F.2d 1014 (9th Cir.1991). Three examples suffice.

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 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 609-10, 106 S.Ct. at 3123-24. ¹⁰ In turn, the district court based its decision to apply Sec. 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. 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 Sec. 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, 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 unrelated" 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

Furthermore, 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".

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 Sec. 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' 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 Sec. 702c.

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); Cox, 827 F.Supp. at 381-82. We...