United States v. James

PETITIONER:United States
LOCATION:Southhampton County Circuit Court

DOCKET NO.: 85-434
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 478 US 597 (1986)
ARGUED: Apr 21, 1986
DECIDED: Jul 02, 1986

Andrew J. Pincus – on behalf of the Petitioner
T. John Ward – on behalf of the Respondents

Facts of the case


Audio Transcription for Oral Argument – April 21, 1986 in United States v. James

Warren E. Burger:

Mr. Pincus, I think you may proceed whenever you are ready.

Andrew J. Pincus:

Thank you, Mr. Chief Justice, and may it please the Court:

In the wake of the devastating Mississippi River Flood of 1927, Congress embarked upon a massive federal program to control flood waters, directing the construction of public works on a massive scale in order to prevent a recurrence of the destruction that accompanied the 1927 flood.

The statute implementing this program included a comprehensive provision regarding the liability that could be imposed upon the federal government.

The provision 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. “

The question presented in this case is whether, in light of this provision, which has been codified as Section 702(c) of Title 33, the government has unambiguously waived its sovereign immunity from tort liability for damage caused by the release of flood waters from a flood control project.

Now, this–

William H. Rehnquist:

I take it, Mr. Pincus, if it weren’t for this provision, there would be little question that it had waived that liability by virtue of the Federal Tort Claims Act.

Andrew J. Pincus:

–Yes, Your Honor, that’s correct.

It’s the relationship between this provision and the Tort Claims Act that is at issue here, and we think in light of this provision, the Tort Claims Act could not be taken to have unambiguously waived the government’s liability in this area.

Indeed, in light of the Tort Claims Act, Respondents have the burden of showing that the liability for which they seek to recover was unambiguously not covered by the provision, because even if the provision was ambiguous, then the Tort Claims Act waiver could not be unambiguous.

So we think in a way they have quite a difficult burden to overcome.

This particular case arises out of two separate incidents in which Respondents suffered damage as a result of the release of flood waters from flood control projects.

The first incident occurred at the Millwood Reservoir, a project located near Ashdown, Arkansas, designed to control flooding by the Red River.

On June 8, 1979, the reservoir was at flood level, and entrapped flood waters were being released through the reservoir’s dam.

Respondents James and Butler were water skiing on the reservoir, and the current created by the discharge of the flood waters pulled Respondents and Respondent Butler’s husband through the dam’s gates.

Respondents were injured, and Respondent Butler’s husband died.

The District Court found that the government had violated the duty of care imposed by state law by willfully and maliciously failing to warn Respondents of the danger caused by the current caused by the discharge of the flood waters.

The Court noted that the current had swept away the buoys that usually marked the area in front of the dam where the current was strong.

The District Court entered judgment in favor of the government, however, holding that Section 702(c) barred Respondents’ tort actions because Respondents’ injuries were caused by flood waters.

The second incident at issue here occurred at the Courtableau Drainage Structure, a flood control project located near Opelousas, Louisiana.

On May 17, 1980, the Bayou Courtableau was at flood level, and the drainage structure’s gates were opened so that the bayou would not overflow its banks.

Kenneth and Joseph Clardy were fishing in the bayou, and their boat became caught in the current created by the discharge of water from the bayou, through the drainage structure.

The boat overturned, and Kenneth Clardy died.

The District Court in that case granted the government’s motion for summary judgment, holding that Respondent Clardy’s tort claim was barred by Section 702(c).

The Court found that Section 702(c) applied because the drainage structures’ gates had been opened to prevent flooding, and the diverted waters were flood waters within the meaning of that provision.

The cases were consolidated on appeal, and the panel of the Court of Appeals affirmed.

The panel stated that prior Fifth Circuit decisions bound it to hold that Section 702(c) barred Respondents’ claims, but it indicated that it disagreed with those decisions.

The full Court of Appeals reheard the case en banc and reversed by a vote of nine to six.

Andrew J. Pincus:

The Court concluded that Section 702(c) does bar certain tort claims, but that the statutory immunity did not extend to the claims asserted by Respondents in these cases.

The dissenting judges stated that Section 702(c) did bar Respondents’ tort claims and argued that the majority’s decision was contrary to the statute’s claim language, it’s legislative history, and settled judicial interpretation of that provision.

We submit that the Court of Appeals unprecedented construction of Section 702(c) is incorrect for two separate reasons.

First, the plain language of the statute and the statute’s legislative history permit only one conclusion, that Section 702(c) immunizes the United States from tort claims arising cut of damage caused by flood waters such as Respondents’ claims here–

Sandra Day O’Connor:

Mr. Pincus, at the time it was enacted, I guess the federal government was not liable for personal injury suits; it was before the Federal Tort Claims Act had been passed.

Andrew J. Pincus:

–Yes, Your Honor.

Sandra Day O’Connor:

And there is some indication from the language of the full statute and the history that Congress was worried in Section 702 about property damage claims.

And it certainly didn’t speak in the statute in terms of personal injury, did it?

Andrew J. Pincus:

Well, Your Honor, it didn’t specifically refer to personal injury, but it did specifically state, wrote quite broadly, it said no liability of any kind, and it specifically wrote any damage.

Certainly, if Congress was only concerned about property damage, it could easily have just written in property damage there, and this Court has construed other statutes in which any damage is used to refer to both personal injury and property damage.

In addition–

Sandra Day O’Connor:

It just seemed to me that the legislative history didn’t paint the clear picture that you say it did here.

Andrew J. Pincus:

–Well, Your Honor, we think in light of the broad language of the statute that the question really is whether Congress somehow intended a more limited meaning to be given to the provision, and that in light of this Court’s cases, there would have to be a clear indication that that was so in order to read the language narrowly, and the legislative history does have quite a bit of discussion of the injuries that were caused by the 1927 flood and–

Sandra Day O’Connor:

Well, and then you have the concern that even if the language should be read broadly as you suggest, then what is the effect of the subsequent passage of the Federal Tort Claims Act?

Andrew J. Pincus:

–Well, Your Honor, we… even Respondents don’t contend that the Tort Claims Act is an implied repeal of Section 702(c), and we think that the proper result would be to read the statutes together, and that section… that the Tort Claims Act would waive sovereign immunity in the areas not covered by Section 702(c).

Section 702(c) would be analogous to one of the exceptions contained in the Tort Claims Act, and that area was an area that Congress declined to waive its sovereign immunity.

Sandra Day O’Connor:

It is kind of curious, isn’t it, that the Congress didn’t make this an exception when it was making out its exceptions for the Tort Claims Act?

Andrew J. Pincus:

Well, Your Honor, we just don’t know why Congress might not have done that, but this… it may well be that they knew the statute was on the books and felt it wasn’t necessary.

There is no indication one way or the other.

But certainly there is a list in the Tort Claims Act legislative history of the statutes that the Tort Claims Act was meant to repeal, and this statute is not included among them.

And we think, given the high standard that has to be satisfied in order to find an implied repeal, there certainly couldn’t be an implied repeal in this case.

And we think what Congress was really doing in 1928 was embarking on a new venture.

It was a very large construction project, the largest kind of public works project the federal government had ever engaged in, and it was a project involved in an area of considerable danger and hazard, as evidenced by the flood that had just occurred the year before, and we think that 702(c) is really read as an insurance clause, to make sure that whatever happened, the entry of the federal government into this area could not be interpreted by any court or anyone else as waiving any aspect of the government’s sovereign immunity except to the limited extent that there were certain exceptions in the statute itself.

We think Congress just wanted to make very sure that in this expensive and dangerous enterprise there was not going to be any unexpected liability because the cost was already so great that the legislature was concerned that it not be increased.

Lewis F. Powell, Jr.:

Mr. Pincus, the Millwood project was constructed, as I recall, and a statute enacted in what, 1946?

Andrew J. Pincus:

Yes, Your Honor, 1946.

Lewis F. Powell, Jr.:

And there was no provision in it comparable to Section 702(c).

Andrew J. Pincus:

No, Your Honor, there isn’t.

Lewis F. Powell, Jr.:

And how do you reason that 702(c) applies to subsequently authorized dam projects?

Andrew J. Pincus:

Well, for several reasons, Justice Powell.

Andrew J. Pincus:

First of all, the language of Section 702(c) does not restrict its application.

It says it applies to damage at any place, and–

Lewis F. Powell, Jr.:

Are there any other provisions of the Act of 1928 that apply to all subsequent water control projects?

Andrew J. Pincus:

–No, Your Honor, and we think that is one of the striking differences.

Most of the other provisions are restricted to the Mississippi River or the specific projects authorized in the statute, and they contain limiting language of that type.

But the immunity language of 702(c) does not contain that particular, any kind of limitation.

And also–

Lewis F. Powell, Jr.:

But is there any other provision in the 1928 act that applies to all subsequent?

Andrew J. Pincus:

–No, Your Honor.


I’m sorry.

Lewis F. Powell, Jr.:

And may I ask one other question in this connection?

You cite a number of authorities, Court of Appeals decisions that on the face appear to support your position.

Does any one of those address the issue raised here with respect to the Millwood project, or did it… what I am saying is did any of those cases involve a project built under a subsequent statute to the statute of 1928?

Andrew J. Pincus:

Yes, Your Honor.

We cite both in our opening brief and on page 19 of our reply brief three cases that specifically address the question, and there are–

Lewis F. Powell, Jr.:

That specifically address the question I have asked you.

Andrew J. Pincus:

–Yes, and they all hold–

Lewis F. Powell, Jr.:

All apply 702.

Andrew J. Pincus:

–that 702(c) applies to all statutes, and in fact, there are many other Court of Appeals decisions that do not address the question expressly but that apply 702(c) where it is clear that the project was not authorized under the ’28 Act.

I think, in fact, that most… the vast majority of the Court of Appeals decisions that we cite apply Section 702(c) to statutes not authorized under the… to project, rather, not authorized under the 1928 act.

And I just wanted to add one more point in response to your question, Justice Powell.

In the debate on the ’28 act and in the statute itself, it is clear that Congress viewed this as the first step in a larger flood control project.

There are many references in the legislative history to subsequent projects that would be authorized in the future, and the statute itself contains a provision directing the Army Corps of Engineers to study future projects, including projects to control the flooding on the Red River that the Millwood Dam eventually was built to control, so that it is clear that when Congress enacted the ’28 statute, it wasn’t just looking at those projects, it was aware that it was establishing a new program and that there would be subsequent statutes in the future authorizing additional projects.

In addition to the language in the legislative history which we think clearly supports our position, the settled interpretation of Section 702(c) we submit is an additional reason for this Court to construe the statute in our favor.

Since the first appellate court construed Section 702(c) in the National Manufacturing Company case in 1954, every Court of Appeals has concluded that the statute bars actions against the United States for damage caused by flood waters.

And in other contexts, this Court has observed that it is reluctant to overturn a statute’s settled, traditional interpretation where there has been unanimity among the Courts of Appeals.

William H. Rehnquist:

What reason does the Court ascribe for its reluctance?

Andrew J. Pincus:

I think the Court has said that where Congress… well, generally, it promotes a settled interpretation of the law, and also, where there is a settled interpretation, Congress can be assumed or in some cases as been made expressly aware of the interpretation.

William H. Rehnquist:

Have we ever said that it simply can be assumed that Congress knew about it without any indication, that Congress in fact did know about it?

Andrew J. Pincus:

I don’t think you have said that, but there is an indication in this case that Congress did know about the construction of Section 702(c) to which we refer.

In 1960 a private bill seeking recovery for flood damages was referred to the Court of Claims for an assessment by Congress, and the Court of Claims in its report back to Congress specifically noted that the claimants would have no action against the United States at law because Section 702(c) was a settled bar to any tort liability.

William H. Rehnquist:

And was this claim one for property damages or one for personal injury?

Andrew J. Pincus:

This was a… this was a property damage claim, but the Court of Claims did not distinguish between property damage and personal injuries.

John Paul Stevens:

I just wanted to ask another.

Maybe this is the same thing, but is the footnote accurate in the majority opinion, there are 23 cases in all, and only two of them really deal with personal injuries, and those two didn’t answer the question squarely?

Is that a fair summary?

Andrew J. Pincus:

Yes, Your Honor, that’s a summary.

Let me make two other observations.

Those two cases didn’t… did not not address the question because of any concern that the rule might not apply.

They didn’t address the question for other reasons.

John Paul Stevens:

There’s another reason for granting immunity to the government?

I remember, yes.

Andrew J. Pincus:


And that the 24 cases that have found immunity have not in any way limited their decision, the rule of decision that they adopt to property damage.

They just have not had occasion to address it.

And they–

–But are they not at least consistent with the suggestion that Justice O’Connor made at the outset that if one reads the statute as primarily directed at property damage, those cases just don’t shed any light one way or another on the question.

You may still be right, but aren’t they kind of neutral on the basic issue as to whether the statute should be limited to property damage claims?

Andrew J. Pincus:

Well, they are neutral to the extent that they don’t expressly hold either way, but certainly they all read the section as very broad.

They don’t accept… they don’t see the tort immunity as flowing out of any concern with property.

They see the tort immunity as an expression of a global congressional concern not to have any liability associated with the project.

So I think to that extent they do support our position because they don’t… they don’t really look at those cases as property cases.

They look at them as liability cases, and they conclude that no liability should be imposed on the government.

In view of the clarity and breadth of the language of the statute, we submit that Respondents really bear the burden of trying to find in the legislative history some narrowing principle that would allow them to assert their claims against the government.

The Court has stated many times, most recently in the Dimension financial case this term that where the language of the statute is clear, the quest for the meaning of the statute is at an end because it is through the language of the statute that Congress most directly expresses its intent, and here the language of the statute is very clear, and we think that Respondents have to come forward and show clear congressional intent to limit that broad language, and they just haven’t done so.

Indeed, what is particularly striking about this case is that neither Respondents nor the Court of Appeals have suggested a narrow construction of the statute that is consistent with the language or supported by the legislative history or common sense.

They have come up with five or different… five or six different interpretations of the statute, but that in itself shows that there is no clear congressional intent as to the one limiting interpretation because the parties trying to limit the statute have simply been unable to agree among themselves.

And at bottom, we think that Respondents and the Court of Appeals simply disagree with the policy determination that underlies the rule of immunity adopted in Section 702(c) and that their narrow constructions of the statute are designed to implement that contrary policy determination.

We submit that those are arguments that should be addressed to Congress, and Congress may well decide that it is appropriate to change the rule.

Andrew J. Pincus:

But in light of the plain language of the statute, that course is not available here.

I would just like to address briefly, Justice O’Connor, your concern about the legislative history and property damage.

It seems to me that one problem with limiting the statutory immunity to tort… to barring tort liability only when related to property damage, it’s difficult to see why Congress… there is nothing in the legislative history that indicates that particular result.

There’s nothing that divides tort liability between personal injury and property damage.

Sandra Day O’Connor:

Well, it’s just that the government was immune from personal injury suits at that time; probably didn’t think about it very much.

Andrew J. Pincus:

But it also would… it also was immune from property damage liability suits.

I mean, that’s… the reason that we think that the provision is best interpreted as a broad assertion of immunity is that there… it was immune from all these things.

William H. Rehnquist:

But it wasn’t immune from takings claims.

Andrew J. Pincus:

No, Your Honor, but no one claims that the provision bars actions for damages required by the Fifth Amendment.

William H. Rehnquist:

No, but Congress may have focused on the sort of invasion of property interests that do not amount to a taking but that might nevertheless have given rise to some sort of a claim for property damage in connection with a takings claim more readily than if we are simply looking at the whole spectrum of tort liability.

Andrew J. Pincus:

Well, Your Honor, it is possible, but again, that kind of distinction doesn’t appear in the legislative history, and it certainly doesn’t appear in the language of the statute, and the Court has said in its previous cases that even if… that are cited in our brief, even where the examples in the legislative history may be limited to a particular area where Congress writes broadly in the statute, then the statute, absent some congressional intent to limit the statutory language, the statute should not be limited to those examples in the legislative history, and we think that is true here, although the legislative history history may have focused on one particular kind of example or another.

It also indicates that there was a broad concern with liability of all kinds, and we think that the provision, that the broad language of the statute reflects that and was an intent to just set a firm rule to avoid any questions that might arise in the future.

John Paul Stevens:

Mr. Pincus, may I ask one other general question?

I am kind of puzzled by the fact that although there are some 23 or 24 cases in the Courts of Appeals, that apparently only twice before did this issue even surface, and I don’t now whether it means the statute is just as clear as you say it is or whether cases got lost.

There’s so few cases since the Tort Claims Act was passed, is there a lot of litigation in the District Courts that we just haven’t had called to our attention, or is this representative sample correct?

Andrew J. Pincus:

Not that I’m aware of, Your Honor.

I don’t know what the answer might be.

John Paul Stevens:

Because certainly there must have been a fair number of accidents that are somewhat similar to this.

It’s a strange situation.

Andrew J. Pincus:

If possible, I just… I can’t explain it, and again, I think, I think it equally could be plaintiffs that are deterred because of the statute as anything else, and that may well be the likely answer, and there are not that many appellate court cases, given the long period of time that the statute has been in effect.

So that may well explain it.

If there are no other questions, I would like to reserve the rest of my time.

Warren E. Burger:

Mr. Ward?

T. John Ward:

Mr. Chief Justice, and may it please the Court:

Respondents would like to present two of the arguments set forth in their brief this morning in support of their position.

The two arguments that we will present, we contend that Section 702(c) was not contend… not intended to immunize the government from tort claims from which it was already immune, but rather, it was enacted and the intent was to deal with a special problem created by Congress’ decision to compensate certain property owners for certain types of flood damages.

And secondly, even if 702(c) does bar ordinary tort claims, it is not applicable to the claims of the Respondents because the Respondents’ injuries in this case, these cases, arose from the government’s mismanagement of recreational activities, totally unrelated to flood control.

Now, we would like to start out and direct the Court to the second argument there, that is, that if we assume for purposes of argument only here this morning that 702(c) does grant immunity, then even assuming that, it doesn’t dispose of the Respondents’ claims because the immunity has no applications to the Respondents’ damages which were caused by the government’s negligence in the management of recreational activities unrelated to flood control.

William H. Rehnquist:

Do you think the majority of the Court of Appeals would have agreed with this position of yours, Mr. Ward?

T. John Ward:


T. John Ward:

I just don’t know, Your Honor.

I have a hard time… we did not present that in our brief per se in the Court of Appeals originally.

We argued that at the time before the Fifth Circuit, but that was not… what it went off on is close to it, but I believe that they go… the Court of Appeals’ opinion is broader than what we argued, and what we–

William H. Rehnquist:

Yes, and in… the decision cast in those terms would not really be an affirmance of the reasoning of the Court of Appeals.

T. John Ward:

–That is correct, not of the reasoning; of the result only.

We brought these claims pursuant to the Tort Claims Act, and under the District Court’s findings of fact and under the allegations in the Clardy case, it is clear that we are dealing with the government’s negligence that is unrelated to flood control, and that they are solely related to the mismanagement of recreational facilities.

The government has continued throughout this case to try to ignore the recreational context in which these claims arises.

For instance, here this morning we asked about cases, different cases, and about the consistency of the Court of Appeals opinions.

There’s two cases, only two, that have even sort of addressed it.

That was the Hayes case and the Morici case, and their recreation was involved to the extent that the discharge of the water in both cases was for recreational purposes, and they got different results.

The Hayes case says the plaintiff can recover when the discharge is solely for recreational cases, and the Morici case says the plaintiff can’t recover.

So when you… that’s the only two cases that really ever addressed in any way the recreational aspect.

William H. Rehnquist:

Well, but isn’t… isn’t there a recreational aspect to almost all flood control projects?

T. John Ward:

Well, there is now, Your Honor, but that was not true in 1928.

That was not even considered in 1928, and no where in the legislative history.

The first time that I have been able to find that the government was into… interested in or authorized to take on recreational activity at flood control projects was in 1946, and I believe that’s codified in 16 U.S. Code 460(d).

So that was just not a consideration.

But it is true that in most flood control projects, they have now taken on the management of recreational facilities as a separate and distinct function for fundamentally different purposes than flood control.

William H. Rehnquist:

Well, but it is still the control of flood waters, isn’t it?

T. John Ward:

Well, the recreational use doesn’t have anything to do with flood waters.

William H. Rehnquist:

Well, you… though you get a recreational use by virtue of backing up waters behind a dam, to keep up the waters.

T. John Ward:

To that extent, yes, sir, I agree with that.

William H. Rehnquist:

So that there is a considerable relationship between the two.

T. John Ward:

Well, they have a common place, that is true, Your Honor, that they conduct… they conduct both activities at the same premises, that is–

William H. Rehnquist:

Well, you wouldn’t have the recreational use if you didn’t have the flood control dam.

T. John Ward:

–I agree, yes, sir.

We rely on the District Court’s findings of fact which in summary is they find that the government recognized that it had a duty to provide for the safety of recreational users, it recognized that this duty was continuing, even though they were in flood control, they recognized that specifically, and the findings of fact specifically recognize that the government had installed a system of buoys to warn of the danger of the discharge structure, and on the date of the accident, only one of the buoys was anywhere close to being where it should have been, and it did not provide any warning to a prudent recreational user.

The purpose of these buoys had nothing to do with flood control.

The government had voluntarily elected to engage in the establish… establishment, establishment and management of recreational activities, and this was a fundamentally different activity from flood control.

The government made this decision to install the system of buoys.

T. John Ward:

The system’s only purpose was for the warning of recreational users.

The government encouraged the use of these facilities by recreational users, and we urge that 702(c) have a more narrower interpretation than this broad, sweeping interpretation that the government is urging this Court to adopt in the recreational context.

William H. Rehnquist:

Well, Mr. Ward, when you… it’s hard to think of a statute cast in more sweeping terms.

As Judge Gee pointed out in his dissent, no liability of any kind shall attach to or rest upon the United States for any damage from or by floods on flood waters in any place.

How could Congress have written a broader exemption than what?

T. John Ward:

If that’s all we looked at, I would agree, Your Honor.

William H. Rehnquist:

Well, why, when the legislative history… when the legislative history is clear, why do you look any further?

T. John Ward:

I suggest to Your Honor that if you look at the situation such as Justice O’Connor described, that at that time that the government enjoyed complete immunity from tort claims, then the statute in effect is rendered meaningless at the time of its enactment.

It’s superfluous.

That violates some principles of statutory construction that you never presume that Congress puts meaningless language in a statute.

It would have had no meaning.

It would have laid there dormant from 1928 until 1946 when we acted… enacted the Tort Claims Act, and suddenly, by the breathing of life, if you will, through the Tort Claims Act in this dormant provision, and I am suggesting that they should be read consistently and that we should give consideration to the congressionally declared policy in the Tort Claims Act that the government will be liable for its negligence the same as an ordinary person would.

William H. Rehnquist:

Well, are you saying that there was an implied repeal of 702(c)?

T. John Ward:

No, no, Your Honor.

I am not saying that.

I am saying that because of the fact that the statute was superfluous, because of the fact that it had no meaning until you enacted the Tort Claims Act, and the fact that the government had been engaging in activities which would create a risk up until the time of the Tort Claims Act that they never saw fit to codify, that you should look behind the plain meaning of the statute for those reasons, and when you look behind the plain meaning of the statute, I think you will see what Congress’ intent was, and it did not consider that.

We will get into that in our second point.

But the third reason that I believe that we have to limit the application of this statute and its breadth is that we are talking about an immunity statute, and the fundamental principle of immunity doctrine is that you never extend it beyond its justifying purposes.

William H. Rehnquist:

Where do you get that from?

T. John Ward:

Cases that we have cited there in our brief.

William H. Rehnquist:

Well, name one of them.

T. John Ward:

Nixon v. Fitzgerald.

William H. Rehnquist:

Well, but that’s a kind of an immunity that is created… announced by this Court.

That’s not created by statute, is it?

T. John Ward:

No, no, Your Honor, but I believe it still stands for the proposition that in any immunity doctrine, you’re still talking about the function.

You’re talking about in this case whether or not you will extend the immunity to a fundamentally different function than flood control, that is, the function of recreational management, and in those cases that we cite in our briefs dealing with immunity, you are still talking about whether or not it should extend past the function that was intended and it was justified for in its enactment, whether it be by statute or whether it be by the Constitution in the case of the speech and debate clause.

We don’t believe there’s any justification for extending 702(c) immunity to an activity that is unrelated to flood control, particularly where it didn’t engage in the activity, it wasn’t authorized by statute until 1946, and when the government voluntarily elects to engage in an activity such as the management of recreational facilities and affirmatively encourages their use, an extension of immunity to those areas would in no way enhance flood control or encourage the government to engage in flood control.

Having made the decision, and having physically installed these warning buoys as a system, we believe that the government had a clear duty to maintain these buoys in a non-negligent manner.

This has been the rule for over 30 years since this Court announced its decision in Indian Towing v. United States.

We believe that when you look at the statutory history, you will see that there was no consideration given to recreational use of flood control activities, there is nothing in there that would suggest that the government considered recreational use at the time, and clearly, to say that you are going to extend immunity to whatever happens on a recreational reservoir or on a reservoir for flood control activities, we believe that that overstates the scope of the immunity, the permissible scope of immunity.

T. John Ward:

In our brief we offered you two examples, that 702(c) should not extend to the government’s negligence in the management of toxic waste.

If you are going… if the government does that and then by reason of its negligence these toxic wastes get into the flood waters, with the breadth and scope that the government tries to say that we ought to apply, there would be no… there would be total immunity for that.

If they elect to go out there on this same reservoir and establish a ferry service and are negligent in the operation of that ferry, the government says that if the person drowns out there on the lake, that is flood waters, you can’t recover.

We believe that those examples indicate that this particular immunity provision should be construed more narrowly.

We just believe it’s inconceivable that Congress could have intended the statutory immunity intended for flood control activity to be expanded in the fashion urged by the government, so that it should not be expanded to cover fundamentally different activities undertaken by the government for fundamentally different reasons.

Warren E. Burger:

How could the statute have been more expansive in its absolute terms, Mr. Ward?

T. John Ward:

I do not believe it could have, Your Honor.

Warren E. Burger:


T. John Ward:

I say I don’t believe that it could have been more expansive, I agree to that–

Warren E. Burger:

Well, didn’t it bar all liability?

T. John Ward:


Warren E. Burger:

Isn’t that the language of the statute?

T. John Ward:

–That is the language of the statute without going further, yes, Your Honor, and we are suggesting though for other reasons that the scope of the immunity should be more narrowly construed.

Just as a prosecutor loses his immunity when he engages in an administrative activity or an investigative activity, so should a government agency lose 702(c) immunity when it elects to engage in the management of recreational facilities unrelated to flood control.

To some extent, the government appears to contend in the reply brief that our examples are too far removed from the situation of recreational management and that it’s fundamentally different from flood control.

But we suggest to you if you look at the example if the ferry, that they are saying that they would be liable for the negligent operation of the ferry, the danger that the ferry operator had to navigate around was caused under that example by the discharge of flood waters.

So we think that it is very analogous, it is just as… that the same principle should apply as to that situation as to the recreational users in the instant case.

Clearly, we believe that the trial court’s findings conclusively establish that the government was negligent in the management of recreational facilities by failing to maintain the buoy warning system which it had elected to install but which the buoys themselves were in no way related to flood control.

The only common factor, as I mention, is the location of the premises, and this is not different than a lot of tort cases where you have two actors.

In effect, the government is out there doing two different, totally unrelated functions.

When you start analyzing it in terms of traditional tort concepts, I don’t see any reason that we should extend immunity to such fundamentally different activities.

Sandra Day O’Connor:

Well, Mr. Ward, I guess the District Courts, though, did find that the damages were caused by flood waters.

T. John Ward:

They found that one of–

Sandra Day O’Connor:

They didn’t find that damages were caused by operation of the ferry boat on flood waters, they found that here these people were drowned by the flood water.

T. John Ward:

–That is correct, Justice O’Connor, and–

Sandra Day O’Connor:

So I think that answers part of your argument, I must say.

T. John Ward:

–They also found that the negligence in failing to maintain the buoys was a proximate cause of the injuries as well.

We suggest that the appropriate analysis for the Court is to provide that as a question of law, a threshold question would be asked to determine whether or not the government had engaged in activity other than flood control which was a “but for” cause of the Plaintiff’s damages.

If so, then the case would be tried to the trier of fact on traditional tort principles.

This approach, contrary to what the Solicitor argues, would provide the government with a great deal of protection.

T. John Ward:

In virtually all of the Court of Appeals cases that have been reported, the result would be the same, and the government has been winning all of those cases.

So I think it is inconsistent to say that, in their brief, that well, we are going to open up this flood gate of claims because with this approach, you wouldn’t.

You would have the same result in virtually all of the cases.

And additionally, the government would still have the discretionary function exemption available to it under the Tort Claims Act.

Turning to our other point, we believe that 702(c) was clearly intended not to immunize the government against tort claims from which it is already immune, but rather, to deal with special problems created by Congress to compensate certain property owners from flood damage.

We know that when you have got any statutory construction, you have got to look at the plain meaning of the statute.

We have already talked about the fact that it was superfluous at the time it was enacted.

Secondly, if you say we are going to apply this literal meaning rule in this case, you are going to have to have an exception.

You are going to have to say we will apply the literal meaning of 702(c) except in the event of constitutional takings because that would render the statute unconstitutional.

And then the additional reason that we have mentioned, that is, the statute would have had no meaning, the Tort Claims Act is what gave it life, I think we should consider the policy as announced by Congress and the fact that there were… the government had been engaging up until the time of the Tort Claims Act in many activities which presented great risk, but at no time did the government see fit to codify the doctrine of sovereign immunity.

Now, what was significant about this statute is the fact that for the first time, the government was agreeing to compensate property owners along the Mississippi in two situations, for damages that did not rise to the level of a taking; that is the proviso section of 702(c); and 702(d) damages.

Now, the way that statute arose, this was the first time that I found where the government ever agreed to pay for anything other than what the Constitution required in these type of cases.

So Congress was very concerned, and these statutes, the 702(c) proviso and the 702(d) damages, came about as a result of a classic case of congressional compromise, if you will.

On the one hand, you had the very generous provision that the Senate had enacted in Senate Bill 3740 where they said that… it was overly generous.

They were going to just pay for all sorts of property damages, and one of the things that… in addition to the constitutional takings, and additionally, they were going to pay for relocating railroads, and that brought about considerable concern in the House.

Now, the Senate provision was modified in the House before the debate, so it came to the floor of the House where the actual debate took place, with the Senate’s version on the one hand and the administration, the Coolidge administration on the other, which basically said we want to pay for constitutional takings and not a dime more.

So what came about was 702(c) and 702(d), with both sides giving some.

And 702(c) was enacted as a part of these package of amendments.

And in those debates there is no… never an expression of concern about tort liability.

The only concern was about claims that might arise under the overly generous provision of the Senate bill where they were concerned about the fact that they were going to be 75 an acre for lands that were only worth $5 an acre.

That’s what all of that congressional debate.

Now, they can take a word out of context, or one sentence, but when you read the entire congressional debate between April 17 and about April 24th, it becomes abundantly clear that that was never really considered in those debates; tort liability just didn’t come up.

The one or two times that it was mentioned was that, well, we know the government is not liable for consequential damages, just very limited mentioning, and then when it was mentioned, it was always with the affirmative statement that we enjoy complete immunity.

What we believe that 702(c) did was it answered the administration’s concern and some concerns in the House that they would not… that the extra damages over and above constitutional takings would be limited to those specific situations described in the 702(c) proviso, that is, the situation where the damages occur on the opposite side of the river from where levies are built if you can’t build them on both sides, and then the intentional diversion of the stream in 702(d).

And additionally, they were saying that the condemnation provision and procedure set forth in 702(d) would be the only remedy, thereby that was where you would have three Commissioners, and their award would be final, and thereby allaying the fears about all these judicial claims and these local juries.

There would be no judicial entitlement or enforcement of 702(c) proviso damages or 702(d) damages.

In conclusion, I would call the Court’s attention to the statements in the government’s brief about the fact that they have over 9,000 of these projects.

Now, surely, as they have over 9,000 projects, I think it’s clear that they have from the same statistics that are available and known, is that they have visitors in the recreational use of over millions of people to these projects, and I think it’s clear and we can assume that… and every time you’ve got a flood control project, you’ve got to have a discharge of waters, and that the government has elected I’m sure in most instances to install some type of warning system for any dangers.

Now, then, the extreme position that the government urges upon this Court is that it would enjoy total immunity for its failure to maintain those warning systems that it has elected to install, that it would expose all, every citizen that visited this recreational facility under the exclusive control and management of the government to being injured or killed from the government’s negligence or worse such as we have in the Butler case.

We believe that the Court should reject this contention because it’s contrary to the congressionally declared policy as set forth in the Tort Claim Act; it’s contrary to the fundamental principles of immunity doctrine that should be limited to its justifying purposes; and it’s contrary to the actual congressional intent expressed by Congress in the legislative debates when it enacted 702(c).

T. John Ward:

Thank you very much.

Warren E. Burger:

Do you have anything further, Mr. Pincus?

Andrew J. Pincus:

A few things, Mr. Chief Justice.

First of all, with respect to Respondents’ first point, I think the cases that they rely upon in arguing that the statute should be narrowly construed are cases dealing with personal immunity, and the Court has made it quite clear that when the government’s sovereign immunity is at issue, precisely the reverse presumption is applicable.

With respect to their argument about recreational versus flood control activities, I think as Justice O’Connor pointed out, it’s indisputable that the flood waters caused the damage here, and that the damage would not have occurred without the flood waters, and certainly would not have occurred if the flood control project hadn’t been in existence, and we think that that is enough for the… to satisfy the language of the statute which refers to any damage from or by flood waters.

Indeed, the release of flood waters that caused the damage here is precisely what Congress would have foreseen as what would happen in the operation of the flood control projects that it was authorizing.

And finally, our position also comports with what the Courts of Appeals have decided with respect to this issue.

They have all… the courts that have addressed this question of multiple activities or multiple causation have all stated that the damage must be wholly unrelated to flood control or flood waters in order for Section 702 immunity to be withdrawn, and we think if that–

Sandra Day O’Connor:

So, Mr. Pincus, if a federal employee was out on the reservoir in a motor boat to carry out his duties and negligently ran over some swimmer, and the swimmer then drowned in the flood water, the government is immune?

Andrew J. Pincus:

–Yes, Your Honor, as long as the, as long as the flood waters were a legal cause of the, of the damage, which might be–

Sandra Day O’Connor:

Well, the water in the reservoir filled the lungs of the swimmer, and the swimmer died as a result of being run over by the federal officer.

Andrew J. Pincus:

–Yes, that’s our position, if the two causes were completely unrelated, leaving aside, for example, the intentional tort exception to the Tort Claims Act, if the federal employee shot someone in a boat–

Sandra Day O’Connor:

No, my example was negligence.

Andrew J. Pincus:

–No, no, I understand.

All I’m saying is if there are two completely independent causes, if the waters are not… if the damage would have been incurred without the presence of the water, we don’t assert that Section 702(c) applies, but if the waters are necessary, then we think that’s what Congress intended because the statute represents a decision about competing policies, compensating people versus building this vast project, and we think that Congress decided that in order to embark upon the flood control activities, it had to ensure that its sovereign immunity would be complete, and as a result of that, although there may be people like Respondents who are unable to obtain relief in court, there is a flood control system that protects a great many people from damage due to flood waters, and Respondents have other remedies available.

They can seek a private bill in Congress, or they can seek to have the statute amended.

That’s all I have.

Warren E. Burger:

Very well.

Thank you, gentlemen.

The case is submitted.