This litigation arose from serious accidents that occurred in
the reservoirs of federal flood control projects in Arkansas and
Louisiana. In both accidents, recreational users (water-skiers in
Arkansas and a fisherman in Louisiana) of the reservoirs were
injured or drowned when they were swept through retaining
structures after those structures were opened by the United States
Corps of Engineers to control flooding. Separate actions were
brought in Federal District Court against the United States under
the Federal Tort Claims Act. In the Arkansas case, the court held
that, although Government agents had willfully and maliciously
failed to warn of a known danger, the Government was immune from
damages under 33 U.S.C. § 702c, which provides in part that
"[n]o 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." In the Louisiana case, the court similarly granted summary
judgment for the United States despite the Government's concession
that it negligently failed to warn of the danger from the current
caused by open gates. In a consolidated appeal, the Court of
Appeals reversed the judgments, holding that Congress intended
§ 702c to immunize the Government from liability for damage
resulting directly from construction of flood control projects and
for flooding caused by factors beyond the Government's control, but
had not intended to shield the negligent or wrongful acts of
Government employees either in the construction or continued
operation of flood control projects, including the failure to warn
the public of hazards to their use of reservoirs.
Held: Section 702c bars recovery against the Government
in these cases. Pp.
478 U. S.
604-612.
(a) On its face, § 702c's language covers the accidents at
issue. The ordinary meaning of the word "damage" covers injury to
both property and person, and cannot be considered ambiguous in
that it might refer only to damage to property. Moreover, the
language "any damage" and "liability of any kind" undercuts a
narrow construction. Nor do the words "flood" and "flood waters"
create any uncertainty in the context of these accidents. Those
words apply to all waters contained in or carried through a federal
flood control project for purposes of or related to flood
Page 478 U. S. 598
control, as well as to waters that such projects cannot control.
The waters here clearly fall within the statute's ambit. Pp.
478 U. S.
604-605.
(b) The statute's legislative history fully supports attributing
to its unambiguous words their ordinary meaning. Pp.
478 U. S.
606-608.
(c) There is little in the legislative history or otherwise to
support the argument that § 702c was meant to bar only claims
against the Government for damage to property acquired under §
702c's proviso (authorizing purchase of interests in certain
properties bordering the Mississippi River) and under § 702d
(authorizing purchase of "flowage rights"), and thus would allow
recovery for damages to persons or property not connected with
these acquisitions. Nor is there any merit to the argument that,
even if § 702c is intended to grant immunity in connection
with flood control projects, the Government is not entitled to
immunity here because the injuries arose from Government employees'
alleged mismanagement of recreational activities unrelated to flood
control. The manner in which to convey warnings, including the
negligent failure to do so, is part of the "management" of a flood
control project. Finally, the legislative history does not support
construing § 702c as immunizing the Government from liability
only for property damage directly resulting from construction of
flood control projects, but rather indicates Congress' intention to
protect the Government from any liability for damages that might
arise out of flood control. Pp.
478 U. S.
608-612.
760 F.2d 590, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, WHITE, BLACKMUN, and REHNQUIST, JJ., joined.
STEVENS, J., filed a dissenting opinion, in which MARSHALL and
O'CONNOR, JJ., joined,
post, p.
478 U. S.
612.
JUSTICE POWELL delivered the opinion of the Court.
This case presents the question whether the Flood Control Act's
immunity provision in 33 U.S.C. § 702c, which states
Page 478 U. S. 599
that "[n]o 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," bars recovery where the Federal Government would
otherwise be liable under the Federal Tort Claims Act, 28 U.S.C.
§ 2671
et seq., for personal injury caused by the
Federal Government's negligent failure to warn of the dangers from
the release of floodwaters from federal flood control projects.
I
The present case arose from serious accidents at flood control
projects in Arkansas and Louisiana. In both accidents, recreational
users of the reservoirs were swept through retaining structures
when those structures were opened to release waters in order to
control flooding.
A
The project in Arkansas, Millwood Dam, was dedicated in 1966,
and is located in the southwestern corner of the State. The
Millwood Reservoir behind the structure is used for fishing,
swimming, boating, and waterskiing. This reservoir has marinas and
launching areas for small boats. The United States Government
Printing Office has printed brochures that promote the recreational
features of the project and encourage the public to water-ski at
the Millwood Reservoir.
Enormous underwater portals set within the Millwood Dam, called
"tainter gates," allow the discharge of water from the Reservoir
into a spilling basin below. On June 8, 1979, the level of the
Reservoir was such that the United States Corps of Engineers
designated it at "flood stage." As part of the flood control
function of the Millwood facility, the Corps of Engineers began to
release water through the tainter gates. This release created a
swift, strong current toward the underwater discharge.
Respondents Charlotte James and Kathy Butler, who were
water-skiing in that area because the water appeared to be calm,
fell and began drifting toward the tainter gates. Respondents'
Page 478 U. S. 600
husbands, who were operating the ski boat, circled back to give
them the towlines, apparently intending to pull them away from
danger. Tr. 20-21, 166-167. Because of the swift currents,
respondents were unable to hold on to the lines.
Ibid. The
husbands' attempts to pull respondents aboard by hand also failed
because, each time, the current pulled the skiers out of reach.
Id. at 21. Eddy Butler then dove into the water in an
attempt to save his wife, but all three were pulled through the
tainter gates. He drowned, and respondents James and Butler were
injured. The boat, still occupied by Mr. James and his daughter
Sonja, became lodged in the tainter gates, and the occupants were
rescued without injury.
Respondents James and Butler filed suit in the United States
District Court for the Eastern District of Texas against the United
States under the Federal Tort Claims Act, 28 U.S.C. §§
1346(b), 2671
et seq. After a bench trial, the court, in
an unreported opinion, found that a cable strung with orange buoys
delineating the area of danger near the tainter gates had broken
and drifted away; that white anchor buoys marking a restricted area
near the dam were also out of place, and consequently offered no
warning to a reasonably prudent user; that the United States
"knew that the dangerous condition created would result in
injury to those situated as [were respondents James and Butler] if
an adequate warning was not given;"
and that respondents James and Butler were not negligent. The
court assessed damages at $1 million for respondent Butler, and
$40,000 for respondent James, stating that the case went "beyond
gross negligence" and "constitute[d] a classic classroom example of
a death and injuries resulting from conscious governmental
indifference to the safety of the public." App. to Pet. for Cert.
66a. At the same time, however, the court concluded that although
Federal Government agents had willfully and even maliciously failed
to warn of a known danger, the Federal Government was immune from
damages under 33 U.S.C § 702c, a statute left unrepealed
Page 478 U. S. 601
by the Federal Tort Claims Act.
See 60 Stat. 842,
846-847 (listing statutes specifically revoked by FTCA). The court
accordingly denied relief.
B
The relevant flood control project in Louisiana, the Courtableau
Drainage Structure, is located near the West Atchafalaya Basin. On
May 17, 1980, the waters in the reservoir of Bayou Courtableau
Basin were at flood stage, and consequently the Corps of Engineers
opened the gates in the project. This created a strong current.
Kenneth Clardy and his father, Joseph Clardy, were fishing in the
Basin. Only two faded signs at the entrance of the drainage
structure warned of the dangerous current. The boaters could not
see the signs until they already had been swept past them. The boat
became disabled and was drawn through the open gates of the
spillway. Kenneth Clardy was thrown into the approach basin and
drowned while being pulled through a 220-foot-1ong barrel of the
drainage structure. [
Footnote
1] His father survived without injury.
Respondent Susan Clardy, Kenneth Clardy's wife, commenced an
action in the United States District Court for the Western District
of Louisiana seeking damages under the Federal Tort Claims Act,
alleging that the Corps of Engineers failed to post adequate
warnings of the danger from the current caused by the open gates.
The Federal Government conceded that it negligently failed to warn
the decedent. The District Court found, however, that, under
Graci v United States, 456 F.2d 20 (CA5 1971), and
Florida East Coast R. Co. v. United States, 519 F.2d 1184
(CA5 1975), [
Footnote 2]
Page 478 U. S. 602
the United States was immune under § 702c from damages for
personal injury caused by floods or floodwaters in the negligent
operation of flood control projects. The court found further that
the Federal Government's action was within the scope of § 702c
because "the gates were opened to prevent flooding and inundation
landside of the drainage structure." App. to Pet. for Cert. 62a.
The court accordingly granted summary judgment for the United
States.
B
The Court of Appeals for the Fifth Circuit consolidated the
cases on appeal, and a panel affirmed. 740 F.2d 365 (1984).
Although the panel believed that the legislative history of §
702c showed that Congress intended the provision to disclaim only
"liability for
takings,' and not liability for consequential
damages," id. at 373, the panel affirmed both judgments
from the District Courts because of the Circuit's earlier
interpretation of the section in Graci, supra, and
Florida East Coast R. Co., supra. See n 2, supra.
The Court of Appeals reheard the case en banc and reversed the
District Courts' judgments. 760 F.2d 590 (1985). The court
determined that § 702c contained "latent ambiguities" that
could be resolved only by reference to the legislative history.
Id. at 594. Analyzing that history, the court stated that,
in enacting § 702c as part of the Flood Control Act of
1928,
"Congress was concerned with allocating the costs of a major
public works program between the federal government and the state
and local interests, both public and private,
Page 478 U. S. 603
in the wake of a financial, administrative, and engineering
debacle [from the great Mississippi River flood of 1927]."
Id. at 596. Departing from the panel's reading of
§ 702c's legislative history, the en banc court concluded that
Congress intended § 702c to immunize the Federal Government
from liability for damage resulting directly from construction of
flood control projects and from liability for flooding caused by
factors beyond the Government's control, but that Congress had not
intended "to shield the negligent or wrongful acts of government
employees -- either in the construction or in the continued
operation" of flood control projects, including the failure "to
warn the public of the existence of hazards to their accepted use
of government-impounded water, or nearby land."
Id. at 599, 603.
Judge Gee, joined by four other judges in dissent, argued that
the holding was contrary to "the statute's plain words,"
id. at 604, and that
"[b]oth the language of § 702c and the legislative history
[are] entirely consistent with a purpose in the Congress, poised
over a half-century ago on the brink of entry into a massive public
works program -- one of then unprecedented scope and laden with
foreseeable and unforeseeable prospects of liability -- to state
clearly that the federal treasury was to be placed at risk by it no
further than was required by the Constitution."
Id. at 605-606. He noted that this construction was the
unanimous view of previous Courts of Appeals that had construed
§ 702c, and that it "has stood for three decades without any
sign of Congressional dissatisfaction."
Id. at 606.
[
Footnote 3]
We granted certiorari to resolve the resultant split among the
Circuits. [
Footnote 4] 474 U.S.
978 (1985). We now reverse.
Page 478 U. S. 604
II
The starting point in statutory interpretation is "the language
[of the statute] itself."
Blue Chip Stamps v. Manor Drug
Stores, 421 U. S. 723,
421 U. S. 756
(1975) (POWELL, J. concurring). "[W]e assume that the legislative
purpose is expressed by the ordinary meaning of the words used."
American Tobacco Co. v. Patterson, 456 U. S.
63,
456 U. S. 68
(1982). The immunity provision in § 702c, enacted as part of
the Flood Control Act of 1928, 45 Stat. 534, 33 U.S.C. § 701
et seq., outlines immunity in sweeping terms: "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." (Emphasis added.) It is difficult to
imagine broader language. [
Footnote
5]
On its face, this language covers the accidents here.
Respondents' injuries occurred as a result of the release of waters
from reservoirs that had reached flood stage. Given the nature of
the accidents at issue, and given the plain terms of the statute,
"it requires some ingenuity to create ambiguity."
Rothschild v.
United States, 179 U. S. 463,
179 U. S. 465
(1900).
Page 478 U. S. 605
Cf. TVA v. Hill, 437 U. S. 153,
437 U. S. 173,
n. 18 (1978) (assertions of ambiguity do not transform a clear
statute into an ambiguous provision).
Although the Court of Appeals found, for example, that the word
"damage" was ambiguous because it might refer only to damage to
property and exclude damage to persons, 760 F.2d at 594, and n. 7,
the ordinary meaning of the word carries no such limitation.
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. . . ."
American Stevedores, Inc. v.
Porello, 330 U. S. 446,
330 U. S. 450
(1947). [
Footnote 6] Moreover,
Congress' choice of the language "
any damage" and
"liability of
any kind" further undercuts a narrow
construction. (Emphasis added.)
Nor do the terms "flood" and "flood waters" create any
uncertainty in the context of accidents such as the ones at issue
in these cases. 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. As both District Courts
found, the waters here clearly fall within the ambit of the
statute. [
Footnote 7]
Page 478 U. S. 606
III
We have repeatedly recognized that "[w]hen . . . the terms of a
statute [are] unambiguous, judicial inquiry is complete, except
in "rare and exceptional circumstances."'" Rubin v. United
States, 449 U. S. 424,
449 U. S. 430
(1981) (citations omitted). In the absence of a "clearly expressed
legislative intention to the contrary," the language of the statute
itself "must ordinarily be regarded as conclusive." Consumer
Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.
S. 102, 447 U. S. 108
(1980). Despite respondents' contentions and the reasoning of the
Court of Appeals, we 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, channel
stabilization and river regulation, all involving vast expenditures
of public funds."
United States v. Sponenbarger, 308 U.
S. 256,
308 U. S. 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. S.Rep. No. 619,
70th Cong., 1st Sess., 12 (1928). The flood control system in the
Mississippi River Valley in response to this catastrophe was the
largest public works project undertaken up to that time in the
United States. [
Footnote 8]
Page 478 U. S. 607
It is not surprising, in the light of the devastation wrought by
the 1927 flood and the magnitude of Congress' undertaking, that the
legislative history of § 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. Numerous statements concerning the
immunity provision confirm that it was intended to reaffirm
sovereign immunity in such a dangerous and extensive project. The
Chairman of the House Rules Committee, in opening the discussion on
the rule governing debate on the 1928 Act, stated:
"I want this bill so drafted that it will contain all the
safeguards necessary for the Federal Government. If we go down
there and furnish protection to these people -- and I assume it is
a national responsibility -- I do not want to have anything left
out of the bill that would protect us now and for all time to come.
I for one do not want to open up a situation that will cause
thousands of lawsuits for damages against the Federal Government in
the next 10, 20, or 50 years."
69 Cong.Rec. 6641 (1928) (remarks of Rep. Snell). A number of
other Congressmen unequivocally stated that the United States
should not be liable for any expense other than the direct cost of
constructing the project.
See id. at
Page 478 U. S. 608
7028 (remarks of Rep. Spearing);
id. at 6999-7000
(remarks of Rep. Frear). [
Footnote
9]
These statements show that the sweeping language of § 702c
was no drafting inadvertence.
See National Mfg. Co. v. United
States, 210 F.2d 263, 270 (CA8),
cert. denied, 347
U.S. 967 (1954). Congress clearly sought to ensure beyond doubt
that sovereign immunity would protect the Government from "any"
liability associated with flood control. As the Court of Appeals
for the Eighth Circuit explained three decades ago in
National
Mfg., § 702c's language "safeguarded the United States
against liability of any kind for damage from or by floods or flood
waters in the broadest and most emphatic language." 210 F.2d at
270. The equally broad and emphatic language found in the
legislative history shows that Congress understood what it was
saying. We therefore conclude that the legislative history fully
supports attributing to the unambiguous words of the statute their
ordinary meaning.
IV
A
Respondents nevertheless advance several alternative readings of
§ 702c's seemingly clear language.
Respondents Butler and James argue that the immunity provision
of § 702c was enacted as a potential bar to claims against the
Government for damages to property that do not rise to the level of
a constitutional taking. The provision, according to this argument,
thereby assured the Federal Government control over paying for
property rights that it
Page 478 U. S. 609
acquired under the proviso of § 702c (authorizing purchase
of interests in certain properties bordering the Mississippi River)
or under § 702d (authorizing purchase of "flowage rights").
Such a reading, it is contended, would still allow recovery for
damages to persons or property not connected with these
acquisitions.
We do not agree. Both § 702d and the proviso of § 702c
provide for compensation by the Federal Government for the
acquisition of certain kinds of property rights. We cannot see why
Congress would first determine that these property rights deserved
compensation, and then in the same statute give the Federal
Government absolute discretion to decide whether to pay that
compensation. Moreover, there is little in the legislative history
to support the proposition that the immunity provision in §
702c was intended to bar only liability for the compensation
described in the proviso and § 702d. Section 702c's immunity
provision and proviso were introduced by different sponsors. 69
Cong.Rec. 7023 (1928). Congress unanimously accepted the immunity
provision, but enacted the proviso only after debate, and by a vote
of 111-79.
Ibid. The debates on the proviso, which
addressed the narrow issue of whether compensation should be
provided to property owners affected by the construction of levees
on the opposite bank of the river,
see id. at 6642,
contain no reference to the immunity provision,
see id. at
6642, 7022-7023. Similarly, the debate on § 702d does not
reveal any relationship between that section and the immunity
provision in § 702c.
Id. at 7104-7111. Finally, and
most importantly, the proffered interpretation of § 702c
ignores the broad language of the statute. If Congress had wished
to bar actions for compensation for purchases under § 702c's
proviso and § 702d, presumably it would have done so more
specifically.
Respondents Butler and James 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
Page 478 U. S. 610
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 the waters at the Millwood Reservoir and at the
Courtableau Basin was clearly related to flood control. Moreover,
contrary to respondents' argument of "narrowly limited" immunity,
the broad principle applicable here is that a "clear relinquishment
of sovereign immunity [is required] to give justification for tort
actions."
Dalehite v. United States, 346 U. S.
15,
346 U. S. 31
(1953). [
Footnote 10]
B
Respondent Clardy adopts the en banc Court of Appeals' reading
of § 702c: Congress enacted the section to immunize the
Federal Government from liability
only for property damage
resulting directly from construction of flood control projects.
To support this argument, both respondent Clardy and the Court
of Appeals rely on the portion of the legislative history of §
702c that concerns the Government's acquisition of property
Page 478 U. S. 611
rights. According to the argument, the House of Representatives,
where the provision originated, enacted § 702c solely in
response to the Senate version of the Flood Control Act, which
would have created broad remedies for property owners, offering
"[j]ust compensation" for "all property used, taken, damaged, or
destroyed in carrying out the flood control plan." [
Footnote 11] S. 3740, 70th Cong., 1st
Sess., 54 (1928), 69 Cong.Rec. 5483 (1928). This language would
have provided compensation well beyond the requirements of the
Fifth Amendment's Takings Clause. It accordingly met with
substantial hostility in the House, where Members feared it might
"make the railroads" and other large property owners "a present of
many millions of dollars."
Id. at 6712 (remarks of Rep.
Kopp).
According to respondent Clardy, § 702c was added simply to
counteract this generosity, and to prevent any excess costs for the
acquisition of flowage rights or easements after the completion of
the flood control project. Since none of the respondents' claims
stem from property damage due to construction of a dam or
reservoir, the argument goes, § 702c's immunity does not
apply, and the Government may be held liable for its failure to
warn the public of "the existence
Page 478 U. S. 612
of hazards to their accepted use of government-impounded water
or nearby land." 760 F.2d at 603.
We find no merit to this argument. It is true that, during the
debates on the Act, several Congressmen used the terms "liability"
and "damage" to refer only to property damage caused by the
construction of the flood control projects. But, as we have noted
above, there are numerous passages in the legislative history that
emphasize the intention of Congress to protect the Federal
Government from any damages liability that might arise out of flood
control.
Supra at
478 U. S. 607-608. We think that the "fragments of
legislative history" on which respondent Clardy and the Court of
Appeals relied do not constitute "a clearly expressed legislative
intent contrary to the plain language of the statute."
American
Tobacco Co. v. Patterson, 456 U.S. at
456 U. S.
75.
V
As the facts in this case demonstrate, one can well understand
why the Court of Appeals sought to find a principled way to hold
the Government responsible for its concededly negligent conduct.
But our role is to effectuate Congress' intent, and Congress rarely
speaks more plainly than it has in the provision we apply here. If
that provision is to be changed, it should be by Congress, and not
by this Court. We therefore follow the plain language of §
702c, a section of the 1928 Act that received careful consideration
by Congress and that has remained unchanged for nearly 60 years,
and hold that the Federal Government is immune from suit in this
type of case. The judgment of the Court of Appeals for the Fifth
Circuit is accordingly reversed.
It Is so ordered.
[
Footnote 1]
The District Court incorrectly identified Joseph Clardy as the
decedent. App. to Pet. for Cert. 60a-61a.
[
Footnote 2]
In
Graci v. United States, property owners in Louisiana
brought suit for flooding allegedly caused by negligent design in
the Mississippi River Gulf Channel Outlet, a navigation project
that provides a shortcut from the Gulf of Mexico to New Orleans.
The Federal Government contended that § 702c granted immunity
from damages caused by any floodwaters, even those unconnected with
flood control projects. The court rejected this argument, and held
that the provision conferred immunity only for floods or
floodwaters connected with a flood control project.
In
Florida East Coast R. Co v. United States, the court
denied recovery to a railroad after its tracks near a central
Florida flood control project were washed out by heavy rains. The
court rejected arguments that the immunity provision did not cover
losses caused or aggravated by the Federal Government's own
negligence, and that "washouts" caused by the rapid runoff of
surface water were not "flood" damage.
[
Footnote 3]
Judge Higginbotham filed a separate dissenting opinion stating
that
"[w]ithout clear evidence of what Congress meant to do in 1928,
I would defer to the longstanding and unanimous construction placed
on § 702c by this and other courts. . . ."
760 F.2d at 606-607.
[
Footnote 4]
All other Courts of Appeals that have interpreted § 702c --
and, prior to this case, the Court of Appeals for the Fifth
Circuit,
see n. 2,
supra -- have held that §
702c grants immunity to the Federal Government from damages caused
by floodwaters from a flood control project.
See, e.g., Portis
v. Folk Construction Co., 694 F.2d 520, 522 (CA8 1982)
(purpose of § 702c is "to assure the government of absolute
immunity for [damages caused by flooding related to] flood control
projects");
Morici Corp. v. United States, 681 F.2d 645,
647-648 (CA9 1982) ("[I]f [the plaintiff's] injury resulted from
the operation of [a] federal project for flood control purposes,
government immunity is complete");
Callaway v. United
States, 568 F.2d 684, 686-687 (CA10 1978) (rejecting arguments
that § 702c does not apply to flood damages resulting from the
operation of a flood control project in view of "broad and emphatic
language of § 702c");
Parks v. United States, 370
F.2d 92, 93 (CA2 1966) (same).
[
Footnote 5]
As the principal dissent noted, any effort to devise a provision
that more plainly rules out liability "serves small purpose beyond
making the enactment read like an insurance company's form [of]
general release, rather than a statute." 760 F.2d at 604.
Respondents conceded as much at oral argument: "I don't believe
that [§ 702c] could have been more expansive [
in its
absolute terms']." Tr. of Oral Arg. 30.
[
Footnote 6]
Damages means "loss due to . . . injury or harm to person,
property, or reputation." Webster's Third New International
Dictionary 571 (1961); Black's Law Dictionary 351 (5th ed.1979).
Damages carried the same meaning at the time § 702c was
enacted.
See 4 J. Sutherland, Law of Damages §§
1241-1252 (4th ed.1916); 2 T. Sedgwick, Measure of Damages
§§ 573-574a (9th ed.1912).
[
Footnote 7]
See Morici Corp. v. United States, supra, at 647-648
(no immunity for flooding if inundation "
wholly unrelated to
any Act of Congress authorizing expenditures of federal funds for
flood control, or any act undertaken pursuant to any such
authorization'"), quoting Peterson v. United States, 367
F.2d 271 (CA9 1966); Hayes v. United States, 585 F.2d 701,
702-703 (CA4 1978) ("If the plaintiff could prove damage to his
farm 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."
(emphasis added)).
We have noted that here the District Court in each case found
that the waters were being released from federal flood control
facilities to prevent flooding. App. to Pet. for Cert. 61a, 68a.
The Court of Appeals upheld these findings, 760 F.2d at 603, and
assumed that "the waters in this [consolidated] case were
floodwaters."
Id. at 594, n. 6.
[
Footnote 8]
Representative Snell, Chairman of the House Rules Committee,
stated in reporting the rules on debate for the Flood Control Act
of 1928:
"[T]he legislation made in order under this rule is the most
important matter that has been brought before this House since the
declaration of war about 11 years ago. This legislation provides
for the most gigantic undertaking in construction and engineering
that any government in the civilized world has ever undertaken. . .
. [I]t is much larger and will cost four times as much as the
Panama Canal."
69 Cong.Rec. 6640 (1928). The statute authorized $325 million
for the program, Act of May 15, 1928, ch. 569, § 1, 45 Stat.
534-535, but estimates of the cost of the entire project ranged
past $500 million. H.R.Rep. No. 1100, 70th Cong., 1st Sess., 18
(1928).
[
Footnote 9]
Respondents have argued that Congress would not have enacted
§ 702c if it were merely a codification of the Federal
Government's sovereign immunity. The legislative history refutes
this contention. One of the principal Congressmen in the debates
concerning the immunity provision in § 702c remarked:
"While it is wise to insert that provision in the bill, it is
not necessary, because the Supreme Court of the United States has
decided . . . that the Government is not liable for any of these
damages."
69 Cong.Rec. 7028 (1928) (remarks of Rep. Spearing).
[
Footnote 10]
The cases on which respondents Butler and James rely relate to
personal immunity, not to the Federal Government's sovereign
immunity.
See Brief for Respondent James
et al.
33, citing,
inter alia, Harlow v. Fitzgerald, 457 U.
S. 800 (1982);
Nixon v. Fitzgerald,
457 U. S. 731
(1982);
Butz v. Economou, 438 U.
S. 478 (1978).
Respondents Butler and James have also argued that the immunity
provision of § 702c applies only to projects authorized under
the 1928 Act, and therefore does not extend to the Millwood
Project. Section 702c is not, by its terms, restricted to projects
constructed under the 1928 Act. Nor would it make sense for the
Federal Government to have immunity only for some, but not all, of
its flood control projects. We find no merit to this argument.
[
Footnote 11]
Section 702c, which consists of both the immunity provision at
issue and a proviso, reads:
"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:
Provided, however, That if in carrying out the
purposes of . . . this title it shall be found that upon any
stretch of the banks of the Mississippi River it is impracticable
to construct levees, either because such construction is not
economically justified or because such construction would
unreasonably restrict the flood channel, and lands in such stretch
of the river are subjected to overflow and damage which are not now
overflowed or damaged by reason of the construction of levees on
the opposite banks of the river it shall be the duty of the
Secretary of the Army and the Chief of Engineers to institute
proceedings on behalf of the United States Government to acquire
either the absolute ownership of the lands so subjected to overflow
and damage or floodage rights over such lands."
(Emphasis in original.)
JUSTICE STEVENS, with whom JUSTICE MARSHALL and JUSTICE O'CONNOR
join, dissenting.
As a part of the major undertaking authorized by the Mississippi
Flood Control Act of 1928, Congress directed the Secretary of War
and the Chief of Engineers to take special
Page 478 U. S. 613
steps to acquire lands that were subject to "overflow and
damage" along the banks of the Mississippi River where it was
impracticable to construct levees. In the section of the Act
containing that specific direction concerning the acquisition of
"lands so subjected to overflow and damage," there is a sentence
stating that "[n]o 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." [
Footnote
2/1]
According to the Court, Congress intended by this sentence to
immunize the Federal Government from liability for
any
claim for personal injury, even though Congress provided expressly
for compensation for property damage in excess of
Page 478 U. S. 614
that required by the Constitution. [
Footnote 2/2] In my view, neither the plain language of
the statute nor the legislative history behind it supports imputing
such a perverse design to the Legislature. In my opinion, this
provision applies only to property damage, and the judgment below
should be affirmed. [
Footnote
2/3]
The immunity provision absolves the United States of liability
for any "damage" by floods or floodwaters. The word "damage"
traditionally describes a harm to property (hence, "property
damage"), rather than harm to the person (usually referred to as
"personal injury"). As Chief Judge Cockburn explained in
Smith
v. Brown, 40 L.J.Rep. (n.s.) 214, 218 (Q.B.1871):
"The question is whether a personal injury occasioned by the
collision of two vessels comes under the term "damage" as used in
the 7th section. Now the words used are undoubtedly very extensive,
but it is to be observed that neither in common parlance nor in
legal phraseology is the word "damage" used as applicable to
injuries done to the person, but solely as applicable to mischief
done to property. Still less is this term applicable to loss of
life or injury resulting therefrom, to a widow or surviving
relative. We speak indeed of "damages" as compensation for injury
done to the person, but the term "damages" is not employed
interchangeably with the term "injury," with reference to mischief
wrongfully occasioned to the person. . . . [T]his distinction is
not a matter of mere verbal criticism, but is of a substantial
character, and necessary to be attended to. . . .
Page 478 U. S. 615
See Seward v. The Owners of the Vera Cruz, 54 L.J.Rep.
9, 13 (P.D. & A.1884) (Lord Chancellor);
Simpson v.
Blues, 41 L.J.Rep.(n.s.) 121, 128 (C.P.1872). This
understanding of "damage" was not peculiar to English common law
courts, but was the preferred definition found in legal
dictionaries and in legal encyclopedias in use in the United States
around the time Congress drafted the Mississippi Flood Control Act.
See, e.g., Bouvier's Law Dictionary 749 (8th ed.1914); 15
Am.Jur., Damages § 2, p. 388 (1938) ("A distinction is to be
noted between the word
damage' and `damages.' `Damage' is
defined to be the loss, injury, or deterioration caused by
negligence, design, or accident of one person to another in
respect of the latter's personal property, whereas `damages'
signifies compensation in money for the loss or damage" (emphasis
added)); 17 C.J., Damage 698 (1919) ("It has been held that,
neither in common parlance nor in legal phraseology, is the word
[`damage'] used as applicable to injuries done to the person, but
solely as applicable to mischief done to property; and, although we
speak of damages as compensation for injury done to the person, yet
the term is not employed interchangeably with the term `injury,'
with reference to mischief wrongfully occasioned to the person; but
there is authority to the effect that the term `damage' includes
personal injuries; and, where the context shows that damage means
personal injury, the term will be so construed." (footnotes
omitted))"
Because the preferred definition of "damage" in 1928 excluded
harm to the person, one would think that the Court, in accordance
with the "plain meaning" of § 3, would construe the immunity
provision to bar liability only for property damage. Surprisingly,
the Court reaches precisely the opposite conclusion. Its analysis,
however, relies entirely on authorities which define
"
damages" -- or the monetary remedy imposed on one found
liable for a legal wrong -- rather than "
damage" -- which
is the term Congress employed to identify the liability from which
the Federal Government was thereafter excused. It is therefore
quite beside the point
Page 478 U. S. 616
that "damages" have "
historically been awarded both for
injury to property and injury to the person.'" Ante at
478 U. S. 605
(quoting American Stevedores, Inc. v. Porello,
330 U. S. 446,
330 U. S. 450
(1947)), for the statute bars liability for "damage," not
"damages." Indeed, the Court's own authorities, see ante
at 478 U. S. 605,
and n. 6, distinguish between the two terms:
"It might be noted here that there is a distinction between
damage and damages. Black's Law Dictionary cautions that the word
"damage," meaning "Loss, injury, or deterioration," is "to be
distinguished from its plural, --
damages,' -- which means a
compensation in money for a loss or damage.""
American Stevedores, Inc. v. Porello, 330 U.S. at
330 U. S. 450,
n. 6. [
Footnote 2/4] The Court thus
provides no basis for thinking that Congress used "damage" other
than in its common, preferred usage to mean property damage. If
"plain meaning" is our polestar, the immunity provision does not
bar respondents' personal injury suits.
The remainder of the statute and its legislative history
similarly provide no basis for assuming that Congress used "damage"
to bar liability for personal injuries. The text of § 3 --
indeed, the text of the entire Mississippi Flood Control Act of
1928 -- contains no reference to personal injury. Moreover, when
the sentence beginning "[n]o liability" is read together with the
proviso appended to it, it is most
Page 478 U. S. 617
readily understood as relating to the kind of harm that the
paragraph as a whole describes -- namely, the harm to "land
subjected to overflow and damage." As the text of § 3 of the
Act plainly states,
see n 1,
supra, the Federal Government assumed
certain responsibilities for areas in which the construction of
levees was not practicable. Given that specific and limited
undertaking, the sentence limiting liability is best understood as
making it clear that the Federal Government accepted no additional
responsibilities, and did not intend to create a new federal
judicial remedy for failing to carry out its undertaking. Indeed, a
claim that the 1928 Act created a new federal remedy for property
damage was advanced and rejected in
United States v.
Sponenbarger, 308 U. S. 256,
308 U. S.
269-270 (1939). Thus, the text of § 3, read as a
whole, irresistibly implies that the sentence in question was
intended merely to place a limit on the potential liability of the
United States that might otherwise have arisen from the direction
to the Secretary of the War and the Chief of Engineers concerning
overflow damage to land. [
Footnote
2/5]
Page 478 U. S. 618
The legislative history of the statute is entirely consistent
with this reading. It was a response, not only to the disastrous
flood of 1927, but to the perennial threat to landowners in the
alluvial valley of the Mississippi River posed by recurrent floods
since at least 1717.
See United States v. Sponenbarger,
308 U.S. at
308 U. S.
260-262. During the lengthy hearings and debates on the
1928 legislation, there was extensive discussion of the allocation
of the cost of property damage, both past and future, among private
interests, local governmental entities, and the Federal Government.
See ante at
478 U. S. 607,
n. 8 (quoting estimates of the costs of construction and
acquisition of property). But there was no discussion that I have
been able to find concerning potential liability for personal
injuries. If Congress meant to include personal injury "damage" in
the immunity conferred by § 3, one would expect to find some
explanation of why it authorized extraconstitutional compensation
for property damage, but nothing for personal injury. The expected
explanation is nowhere to be found.
Construing the immunity sentence as a limit on the compensation
authorized in § 3 also avoids rendering that sentence
superfluous. The 70th Congress had no reason to enact a special
statute to protect the Federal Government from tort liability for
personal injuries for the simple reason that another decade and a
half was to pass before Congress enacted the Federal Tort Claims
Act in 1946 [
Footnote 2/6] and "put
aside its sovereign armor in cases where federal employees have
Page 478 U. S. 619
tortiously caused personal injury or property damage." [
Footnote 2/7] It is quite unrealistic to
assume that, in 1928, Congress enacted a special provision to avoid
a liability from which it was already immune. [
Footnote 2/8]
It would be regrettable but obligatory for this Court to
construe the immunity provision to bar personal injury claims if
such was the intent of Congress. But when a critical term in the
statute suggests a more limited construction, and when the
congressional debates are not only consistent with this
construction, but nowhere reveal a recognition, let alone an
intention, that the immunity provision would deprive
Page 478 U. S. 620
those injured by governmental negligence of any remedy, a
narrower interpretation is more faithful to the objective of
Congress. It defies belief -- and ascribes to the Members of
Congress a perverse, even barbaric, intent -- to think that they
spent days debating the measure of extraconstitutional compensation
they would provide riparian landowners, but intended -- without a
single word of dissent -- to condemn the widows, orphans, and
injured victims of negligent operation of flood control projects to
an irrational exclusion from the protection of the subsequently
enacted Tort Claims Act.
I respectfully dissent.
[
Footnote 2/1]
Section 3 of the statute, which is now codified as 33 U.S.C.
§ 702c, reads in full as follows:
"Sec. 3. Except when authorized by the Secretary of War upon the
recommendation of the Chief of Engineers, no money appropriated
under authority of this Act shall be expended on the construction
of any item of the project until the States or levee districts have
given assurances satisfactory to the Secretary of War that they
will (a) maintain all flood control works after their completion,
except controlling and regulating spillway structures, including
special relief levees; maintenance includes normally such matters
as cutting grass, removal of weeds, local drainage and minor
repairs of main river levees; (b) agree to accept land turned over
to them under the provisions of section 4; (c) provide without cost
to the United States, all rights of way for levee foundations and
levees on the main stem of the Mississippi River between Cape
Girardeau, Missouri, and the Head of Passes."
"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:
Provided, however, That if in carrying out the
purposes of this Act it shall be found that upon any stretch of the
banks of the Mississippi River it is impracticable to construct
levees, either because such construction is not economically
justified or because such construction would unreasonably restrict
the flood channel, and lands in such stretch of the river are
subjected to overflow and damage which are not now overflowed or
damaged by reason of the construction of levees on the opposite
banks of the river it shall be the duty of the Secretary of War and
the Chief of Engineers to institute proceedings on behalf of the
United States Government to acquire either the absolute ownership
of the lands so subjected to overflow and damage or floodage rights
over such lands."
45 Stat. 535-536.
[
Footnote 2/2]
Congress rejected an amendment to § 3 to provide only such
compensation as would be required by the Constitution -- a measure
that Congress thought excluded flowage rights.
See 69
Cong.Rec. 7104-7111, 7122 (1928).
[
Footnote 2/3]
My reading of the statute and its legislative history also
persuades me that the immunity provision has no application to any
other flood control project.
[
Footnote 2/4]
The treatises on damages on which the Court relies likewise
subscribe to this definition of "damages,"
see 1 T.
Sedgwick, Measure of Damages § 29 (9th ed.1912); 1 J.
Sutherland, Law of Damages § 2, p. 4 (4th ed.1916);
id. § 12, at 46, and the distinction between "damage"
and "damages" appears to have been universally observed,
see,
e.g., 15 Am.Jur., Damages § 2, p. 388 (1938); 8 American
and English Encyclopaedia of Law 535 (2d ed. 1898); W. Hale, Law of
Damages 9, 12-13 (2d ed.1912). In fact, the authorities cited by
the Court support the traditional interpretation of "damage"; for
example, in the index to his treatise Mr. Sedgwick refers to
"damage" only when referring to property damage.
See 4
Sedgwick,
supra, at 3160-3162.
[
Footnote 2/5]
The Court,
see ante at
478 U. S. 609,
is simply wrong in intimating that the immunity sentence and its
proviso were dissociated from each other during their consideration
before Congress. The Court's observation that the immunity
provision and the proviso were sponsored by different Congressmen
is only trivially true: the proviso was offered by Representative
Garrett of Tennessee as an amendment to the immunity provision,
which was itself a pending amendment, sponsored by Representative
Reid of Illinois, to the bill before the House of Representatives.
69 Cong.Rec. 7022 (1928). The sponsor of the proviso,
Representative Garrett, offered his amendment as an amendment to
the immunity provision
before it was added to the bill.
Ibid. In explaining the reason for this, Representative
Garrett underscored the symbiotic relationship between the immunity
provision and the proviso:
"Mr. Chairman, I am inclined to agree with the gentleman from
Illinois [Mr. MADDEN] that the amendment which the gentleman from
Illinois [Mr. REID] has proposed more properly would come in
another section, but if it is to come now it seems to me that my
amendment will
have to come in connection with it at this
place. I do not want to lose any rights in connection with it."
Ibid. (emphasis added). A short while later, the House
passed Representative Garrett's amendment adding the proviso to the
amendment containing the immunity provision.
Id. at 7023.
Immediately thereafter, the House agreed to "the amendment of the
gentleman from Illinois
as amended by the amendment of the
gentleman from Tennessee."
Ibid. (remarks of the
Chairman) (emphasis added). The immunity provision and the proviso
were thus considered and passed as a package.
[
Footnote 2/6]
660 Stat. 842-847.
[
Footnote 2/7]
American Stevedores, Inc. v. Porello, 330 U.
S. 446,
330 U. S. 453
(1947). It is interesting to note that, in the Tort Claims Act
itself, Congress repeatedly referred in the alternative to claims
"on account of damage to or loss of property or on account of
personal injury or death,"
see 60 Stat. 843, 845-846.
Revealingly, the Committee Reports on the Act did not understand
there to be any bar to liability for personal injuries resulting
from flood control projects:
"'This is a highly important exception, intended to preclude any
possibility that the bill might be construed to authorize suit for
damages against the Government growing out of an authorized
activity,
such as a flood control or irrigation project,
where no negligence on the part of any Government agent is
shown.'"
Dalehite v. United States, 346 U. S.
15,
346 U. S. 29, n.
21 (1953) (emphasis added) (quoting H.R.Rep. No. 2245, 77th Cong.,
2d Sess., 10 (1942); S.Rep. No. 1196, 77th Cong., 2d Sess., 7
(1942); H.R.Rep. No. 1287, 79th Cong., 1st Sess., 5-6 (1945)).
[
Footnote 2/8]
This construction is also consistent with 58 years of decisional
law. The statute the Court construes today has been on the books
for more than half a century, but, prior to this case, there
appears to be no reported decision in which the Government
successfully asserted it as a defense to a personal injury claim.
See 760 F.2d 590, 599, n. 16 (CA5 1985). It has been
repeatedly and successfully invoked in property damage litigation,
but the application of the statute that the Court upholds today is
completely unprecedented. Given the number and the size of federal
flood control projects throughout our great Nation, and given the
fact that the kind of recreational use disclosed by this record is
fairly common, it is telling that, until today's decision, immunity
had never been upheld in defense to such a claim.