877 F.

2d 427

Louis F. MOCKLIN, Jr., Husband of/and Maria Ryan

Mocklin,
Plaintiffs-Appellants,
v.
The ORLEANS LEVEE DISTRICT and Its Board of Levee
Commissioners, Defendants-Third Party Plaintiffs-Appellants,
and
LUHR BROTHERS, INC., The Home Insurance Co., and City
Insurance Co., Defendants-Cross Plaintiffs, Appellants,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, Third
Party
Defendant-Cross Defendant-Appellee.
No. 88-3675.

United States Court of Appeals,

Fifth Circuit.
July 19, 1989.

Richard B. Ehret, McGlinchey, Stafford, Mintz, Cellini & Land, New

Orleans, La., for Orleans Levee Dist. and its Bd. of Levee Comm.
Dennis P. Couvillion, Lee, Martiny & Caracci, Metairie, La., for Mocklin.
Randall A. Fish, Albert H. Hanemann, Jr., Lemle, Kelleher, Kohlmeyer,
Dennery, Hunley, Moss & Frilot, New Orleans, La., for Luhr Bros., The
Home Ins. Co. and City Ins. Co.
Thomas L. Watson, Robert J. Boitmann, Walter J. Becker, Asst. U.S.
Attys., John Volz, U.S. Atty., New Orleans, La., for U.S. Army Corps of
Engineers.
Appeals from the United States District Court for the Eastern District of
Louisiana.

Before CLARK, Chief Judge, WILLIAMS and DAVIS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

In this appeal, the plaintiff-appellants challenge the district court's dismissal of

the United States Army Corps of Engineers from this suit. 690 F.Supp. 527.
The dismissal in the district court was based upon immunity from liability
under the independent contractor defense and also the discretionary function
exception to the Federal Tort Claims Act ("FTCA"). 28 U.S.C. Sec. 1346(b); 28
U.S.C. Sec. 2680(a).

We affirm the district court's dismissal. We find instead that the immunity of
the Corps stems from the sweeping provisions of the Flood Control Act of 1928
("FCA"), 33 U.S.C. Sec. 702c.

I. Facts and Prior Proceedings

3

Because of past damages due to hurricanes and flooding in the lowlands of

Lake Pontchartrain's tidal basin, the Corps of Engineers undertook a flood
control project to prevent further damage.1 The work for the project was
conducted by Luhr Bros., Inc., under contract with the Corps of Engineers. Part
of the plan called for the reinforcement of the levees along the lake. In order to
accomplish this end, the plan required the excavation of flotation channels so
that barges carrying necessary equipment could gain access to the construction
site. The lake was not deep enough near the shore for the barges to have access
so the lake was dredged to make the flotation channels.

Louis and Maria Mocklins' two sons were playing along the levees after these
channels had been excavated. Their younger son waded out approximately one
hundred feet into the lake and suddenly disappeared into the water and
drowned. The Mocklins brought this action to recover damages arising out of
the death of their son, alleging that he drowned when he slipped from a sand
bar caused by the dredging into one of the flotation channels.

The Mocklins sued the Orleans Levee District and its Board of Commissioners
and several other entities that were allegedly involved with the work being
done to the levees. After the Levee Board impleaded the Corps of Engineers,
the Mocklins amended their complaint to include the Corps as a direct
defendant, seeking damages under the FTCA.2 The Corps then filed a Motion
to Dismiss or, alternatively, for Summary Judgment. The district court granted
the motion, finding the Corps immune from liability under the FTCA because

of the applicability both of the independent contractor defense and the

discretionary function exception of the FTCA.
6

The district court's decision was timely appealed to this Court. During the
course of oral argument on April 5, 1989, we requested briefs as to the
applicability of the Flood Control Act to the facts of this case.3 Because we find
the FCA controlling, we have no need to review the district court's
determinations under the FTCA exceptions. We affirm the dismissal based on
absolute immunity under the FCA.

7II. The Supreme Court's Interpretation of the Flood Control

Act
8

Section 702c of the FCA provides that "[n]o liability of any kind shall attach to
or rest upon the United States for any damages from or by floods or flood
waters at any place." 33 U.S.C. Sec. 702c. The Supreme Court has given this
provision broad meaning based on the language and legislative history of the
section. United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3121, 92
L.Ed.2d 483 (1986).

The Court's analysis in James begins with the words of the statute. It notes: "
'we assume that the legislative purpose is expressed by the ordinary meaning of
the words used.' " Id. (quoting from American Tobacco Co. v. Patterson, 456
U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982)). Interpreting the
plain language then, the Court concludes that the terms "flood" and "flood
waters" extend 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 project cannot control." Id. 478 U.S. at 605, 106 S.Ct. at 3121-22.

10

The use of the words "any damage" is also given a meaning consistent with the
ordinary meaning of these words. The Court finds the phrase to include all
different kinds of damages. The Court states:

11
Damages
'have historically been awarded both for injury to property and injury to the
person--a fact too well-known to have been overlooked by the Congress'....
Moreover, Congress' choice of the language 'any damage' and 'liability of any kind'
further undercuts a narrow construction.
12

Id. at 604-05, 106 S.Ct. at 3121 (quoting American Stevedores, Inc. v. Porello,
330 U.S. 446, 450, 67 S.Ct. 847, 850, 91 L.Ed. 1011 (1947)).4

13

As to the legislative history, the Court " 'recognize[s] that where the terms of
the statute [are] unambiguous, judicial inquiry is complete, except in 'rare and
unusual circumstances.' " Id. 478 U.S. at 605, 106 S.Ct. at 3122 (citation
omitted). The Court goes on, however, to find that the legislative history
supports the Court's interpretation that the terms in Sec. 702c should be given
their ordinary meaning.

14

The Court points out that the FCA was enacted in response to the Mississippi
River Valley Flood in 1927 and that the Act called for the largest public works
project of its time. The FCA "enacted 'a comprehensive ten-year program for
the entire [Mississippi River] valley, embodying a general bank protection
scheme, channel stabilization and river regulation, all involving vast
expenditures of public funds.' " Id. at 607, 106 S.Ct. at 3122 (quoting United
States v. Sponenbarger, 308 U.S. 256, 262, 60 S.Ct. 225, 227, 84 L.Ed. 230
(1939)). In this historical context, the Court observes "it is not surprising ... that
the legislative history of Sec. 702c shows a consistent concern for limiting the
Federal Government's financial liability to expenditures directly necessary for
the construction and operation of the various projects." Id. The critical
statement of the law controlling this case was the Court's conclusion that
"Congress clearly sought to ensure beyond doubt that sovereign immunity
would protect the Government from 'any' liability associated with flood
control." Id. 478 U.S. at 608, 106 S.Ct. at 3123.

15

James involved two consolidated cases arising out of the injuries of recreational
users of federal flood control lakes. The claims arose from strong water
currents caused by the flood control projects. The individuals were swept
through flood gates and either injured or drowned. The Court found the claims
to involve "flood waters" so that dismissal by the district court in both cases
was appropriate under the absolute immunity provisions of the FCA.

III. Applicability of the James Court Interpretation

16
17

Under this broad interpretation, our sole inquiry to determine whether the Corps
is immune from liability is whether the Mocklins' son drowned "from or by"
"flood water" within the meaning of Sec. 702c. We conclude that he did.5

18

The flotation channel in which the Mocklins allege the drowning occurred
properly can be said to contain water related to flood control. The channels
were dredged because the lake was not deep enough for the barges to have
access to the shore. The barges were needed to deliver the equipment and
materials used in the reinforcement of the levees to prevent flooding. The

channels were inescapably part of a flood control project.6 The inquiry ends
then, and the Government is protected from "any" liability caused by these
waters as it was in James. See also McCarthy v. United States, 850 F.2d 558
(9th Cir.1988),cert. denied, --- U.S. ----, 109 S.Ct. 1312, 103 L.Ed.2d 581
(1989) (waters of a multipurpose flood control project where the plaintiff was
injured were flood waters within the James definition.)
19

Appellants argue that McCarthy and James are distinguishable because they
involved accidents that resulted from water levels that were unsafe whereas
under our facts it was not an increased water level that caused the accident. This
accident occurred during the construction phase of the levees because of
excavated channels. While in a different way from the prior cases, it is clear
here that the 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. This distinction then does not change the result of immunity under both
situations. Under both situations, the water can be said to have caused the
injury. As the James court points out, Congress intended to protect the
government from liability in the construction phase of the projects as well as in
the maintenance of the projects once they were completed. James, 478 U.S. at
607, 106 S.Ct. at 3122. This conclusion is unassailable in view of the total
immunity granted in the construction phase of the Mississippi River project
whether or not high waters were present at the particular time.

IV. Conclusion
20

Finding the absolute immunity provision of the FCA applicable, we affirm the
district court's dismissal of the action against the Corps of Engineers. The
flotation channel in which the Mocklins' son drowned clearly contained "flood
waters" within Sec. 702c of the FCA because it was created as part of a flood
control project. The district court's decision dismissing the U.S. Army Corps of
Engineers from appellant's suit was correct although we find dismissal required
under the broad and absolute immunity granted by the FCA.

21

AFFIRMED.

Appellants conceded at oral argument that the work being done was part of a
flood control project

The suit charged negligent design of the flotation channels, negligent

supervision of the construction project, and negligent failure to warn potential
trespassers of the dangers at the construction site

Because the question whether the Government has waived its sovereign
immunity against suits for damages is, in the first instance, one of subject
matter jurisdiction, "every federal appellate court has a special obligation to
'satisfy itself not only of its own jurisdiction, but also that of the lower court in
a cause under review,' even though the parties are prepared to concede it."
Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct.
1326, 1331, 89 L.Ed.2d 501 (1986) (citation omitted)

Appellants urge that Congress intended the damages awarded to apply only to
those associated with the taking of private property for public use. See 478 U.S.
at 612, 106 S.Ct. at 3125 (Stevens, J., dissenting). The majority in James
dismisses this argument. 478 U.S. at 609, 106 S.Ct. at 3123

The only other term of the statute that is disputed, "damages," clearly includes
all types. Congress put no limit on the type of harm that the government would
be immune from in the statutory language. See supra note 4 and accompanying
text

Appellants urge that the injury was "wholly unrelated" to a flood control
project. They argue it occurred because the flotation channels were negligently
designed for navigation and not because of the water in the channels so that the
government falls outside the protection of Sec. 702c. See Morici Corp. v.
United States, 681 F.2d 645, 648 (9th Cir.1982) (the court states the test for
determining "wholly unrelated"); Graci v. United States, 456 F.2d 20, 27-28
(5th Cir.1971), cert. denied, 412 U.S. 928, 93 S.Ct. 2752, 37 L.Ed.2d 155
(1973) (government not allowed immunity under the FCA where construction
of Mississippi River Gulf Outlet allegedly allowed hurricane driven waters to
flood plaintiffs' properties). Appellants have misinterpreted the meaning of
"wholly unrelated." It is the operation and not the injury that must be "wholly
unrelated" to flood control for the FCA not to apply
In Graci, the court found no immunity under Sec. 702c because the project that
the government had undertaken had nothing to do with flood control. It was a
navigation project to provide a short cut from the Gulf of Mexico to New
Orleans. The case is readily distinguishable. In contrast, the project was a flood
control project in Morici. The government was held to have absolute immunity.