UNITED STATES OF AMERICA, PETITIONER V. CHARLOTTE JAMES UNITED STATES OF AMERICA, PETITIONER V. KATHY BUTLER, INDIVIDUALLY AND AS SURVIVING WIFE AND HEIR OF EDDY BUTLER UNITED STATES OF AMERICA, PETITIONER V. SUSAN B. CLARDY, INDIVIDUALLY AND AS NATURAL TUTRIX OF THE MINORS, BRIDGET MARIE CLARDY AND KENNETH CLARDY No. 85-434 In the Supreme Court of the United States October Term, 1985 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgments of the United States Court of Appeals for the Fifth Circuit in these consolidated cases. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the en banc court of appeals (App., infra, 1a-38a) is reported at 760 F.2d 590. The opinion of the court of appeals panel (App., infra, 39a-58a) is reported at 740 F.2d 365. The opinions of the district courts (App.,infra, 59a-65a, 66a-76a) ar unreported. JURISDICTION The judgments of the en banc court of appeals (App., infra, 77a-80a) were entered on May 26, 1985. On August 6, 1985, Justice White extended the time for filing a petition for a writ of certiorari to and including September 13, 1985. The Jurisdiction of this Court rests upon 28 U.S.C. 1254(1). STATUTE INVOLVED 33 U.S.C. 702c provides in pertinent part: No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place: Provided, however, that if in carrying out the purposes of sections 702a, 702b, to 702d, 702e to 702g, 702h, 702i, 702j, 702k, 702l, 702m and 704 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. QUESTION PRESENTED Whether 33 U.S.C. 702c, which provides 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 respondents from recovering damages under the Federal Tort Claims Act for injuries allegedly caused by the release of flood waters from federal flood control projects. STATEMENT 1.a. The Millwood dam and reservoir, a federal project located in the State of Arkansas, is operated by the Army Corps of Engineers. One of the purposes of the project is the control of flood waters. App., infra, 67a, 75a. On June 8, 1979, the reservoir's water level was at "flood state" (id. at 68a). The project "was in flood control status, and water was being discharged (from the reservoir) through the tainter gates of the dam structure at the rate of approximately 24,000 cubic feet per second. The water being discharged had been previously entrapped as part of the flood control function of the facility" (id. at 67a-68a.) Respondents Charlotte James and Kathy Butler were water skiing on the Millwood reservoir on June 8, 1979. The current created by the discharge of water from the reservoir drew respondents and the boat containing their companions toward the dam. Respondents were pulled through the dam's gates; respondent Butler's husband drowned attempting to assist his wife. The boat became lodged in the gates and its remaining passengers were rescued. App., infra, 68a. Respondents James and Butler filed separate actions in the United States District Court for the Eastern District of Texas seeking damages under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671 et seq. The district court found that the government had violated the duty of care imposed by Arkansas law by "willful(ly) and malicious(ly)" failing to warn respondents of the danger from the current created by the discharge of water through the dam. App., infra, 70a-72a. The court stated that buoys normally were placed in the reservoir to mark the area of strong current but that government employees were aware that the buoys were not in place on June 8 (id. at 68a-69a). The court determined that respondents suffered damage in the amounts of $1 million for Kathy Butler and $40,000 for Charlotte James (id. at 70a). The district court nonetheless entered judgment in favor of the United States on the ground that the government was immune from liability under 33 U.S.C. 702c, which provides in pertinent 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" (see App., infra, 67a, 72a). The court found that the Millwood dam's tainter gates had been opened for flood control purposes and that respondents' injuries therefore were caused by "flood control waters" (id. at 67a-68a, 72a). b. The Courtableau Drainage Structure, a flood control project located in the State of Louisiana, is operated by the Army Corps of Engineers. The structure contains gates that can be opened to divert water through the West Atchafalaya Basin Protection Levee in order to prevent the water level of the Bayou Courtableau from rising higher than the levee. App., infra, 61a, 63a. On May 17, 1980, the structure's gates were opened because the water level "'would have caused flood conditions and flooding landside of the levee if the gates of the Courtableau Drainage Structure had not been opened'" (id. at 61a). Kenneth Clardy and his father, Joseph Clardy, were fishing in the Bayou Courtableau on May 17, 1980. Their boat was caught in the current created by the open drainage gates, the boat overturned, and Kenneth Clardy drowned. Id. at 4a. /1/ Respondent Susan B. 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. She alleged that the Corps of Engineers failed to post adequate warnings of the danger from the current caused by the open gates. The district court granted summary judgment for the government, holding that the government was immune from liability under 33 U.S.C. 702c (see App., infra, 59a-63a). The court found that the drainage structure's gates had been opened in order to prevent flooding and that excess waters that create the potential for flooding are "flood waters" within the meaning of Section 702c. It concluded that Section 702c immunized the government from liability for damage caused by the release of such waters (App., infra, 62a). 2. The cases were consolidated on appeal and the court of appeals panel affirmed (App., infra, 39a-58a). The panel observed that Section 702c consistently had been interpreted to bar the imposition of liability upon the government for damage related to flood control projects (App., infra, 42a-47a), and stated that this interpretation of the statute presented an "insurmountable" barrier to respondents' claims because their injuries plainly were related to flood control projects (id. at 47a-48a). Despite the "floodtide of authority" supporting this result and "the sometimes-heard argument that Congress has signaled its agreement with (this) statutory construction by leaving the statute unchanged," the panel expressed its view that previous courts had erred in interpreting Section 702c to bar damages claims similar to respondents' claims in these cases (App., infra, 49a). Relying upon its interpretation of Section 702c's legislative history, the panel concluded that the provision was intended by Congress to disclaim only "liability for 'takings' and not liability for consequential damages" (App., infra, 55a). In the panel's view, therefore, "the Federal Tort Claims Act should subject the United States to tort claims for flood control projects in the same manner and to the same extent as a private individual under like circumstances" (id. at 56a (citation omitted)). The panel affirmed the district courts' judgments in favor of the government because it was bound to apply the broader interpretation of Section 702c previously adopted by panels of the Fifth Circuit (App., infra, 57a). 3. The full court of appeals ordered rehearing of the cases en banc and reversed the district courts' judgments by a divided vote (App., infra, 1a-38a). The majority concluded that the language of Section 702c contained "latent ambiguities" necessitating reference to the legislative history in order to ascertain the scope of Section 702c (App., infra, 5a). The en banc court's analysis of Section 702c's legislative history differed somewhat from the result reached by the panel (see App., infra, 11a-20a). The court stated that in enacting the Flood Control Act of 1928, which contained Section 702c, "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" (App., infra, 12a). It concluded that Congress intended Section 702c to immunize the federal government from liability for damages resulting directly from construction of flood control projects and from liability for flooding caused by factors beyond the government's control (App., infra, 8a, 17a-20a), but that it was "doubtful that Congress intended to shield the negligent or wrongful acts of government employees -- either in the construction or in the continued operation" of flood control projects (id.at 18a-19a). Turning to prior judicial interpretations of Section 702c, the en banc court rejected the conclusion of other courts of appeals that Section 702c confers immunity from liability for all damage resulting from flood control efforts (App., infra, 21a-27a). The court concluded that "the limitations on the immunity should be elaborated more particularly" (id. at 27a). It stated (id. at 27a-28a): The government is not liable for any fault of its employees in controlling floodgates or managing lands to contain, prevent, or manage floods or floodwaters. This immunity, however, does not extend to the fault of government employees in failing to warn the public of the existence of hazards to their accepted use of government impounded water, or nearby land. Thus, "(i)f a producing cause of the damage or injury is a government employee's negligence in omissions or commissions that diverge from acts strictly for the purpose of controlling floods or floodwaters, and the presence or movement of water for flood control purposes merely furnishes a condition of the accident, there is no section 702c immunity" (App., infra, 28a). The en banc court held that this standard required reversal of the district courts' judgments in these cases. It stated that the claims asserted by respondents James and Butler were based upon injuries resulting from the government's failure adequately to warn of the danger of the current in the reservoir. The court concluded the Section 702c did not bar these claims, apparently because it viewed the breach of a duty to warn recreational users of a danger arising from the discharge of flood waters as an omission that "diverge(d)" from the government's flood control responsibilities. App., infra, 28a-29a. The court remanded the action for entry of a judgment consistent with its opinion (id. at 30a). With respect to respondent Clardy, the court remanded to allow the development of facts concerning the adequacy of the warning of the danger resulting from the discharge of flood waters (id. at 29a). Six judges dissented. Judge Gee, writing for himself and Judges Garwood, Jolly, Davis and Hill, stated that the majority's decision was contrary to "the statute's plain words and, insofar as I can understand the holding, simply brushes them aside and substitutes for them the court's notions of good policy" (App., infra, 32a). Judge Gee "disagreed with (the majority's) massive judicial recasting of Congressional intent," observing that "(b)oth the language of Section 702c and the legislative history" showed that Congress intended to limit the government's total financial exposure as a result of a flood control program of "unprecedented scope and laden with foreseeable and unforeseeable prospects of liability" (id. at 34a-35a). He noted that this was the unanimous view of previous appellate decisions construing Section 702c and that this "construction has stood for three decades without any sign of Congressional dissatisfaction" (id. at 36a). Judge Gee concluded that respondents' claims were barred under this interpretation of the statute. Id. at 34a-36a. Judge Higginbotham filed a separate dissenting opinion. He stated that "(w)ithout clear evidence of what Congress meant to do in 1928 (when Section 702c was enacted), I would defer to the longstanding and unanimous construction placed on Section 702c by this and other courts -- a construction which has given specific and unambiguous content to the clause. The majority has not made the case for turning about at this date, regardless of any ambiguity of Section 702c as an original proposition" (App., infra, 38a). REASONS FOR GRANTING THE PETITION When Congress in 1928 embarked upon a massive program to construct dams and other structures in order to protect the public from the destruction that frequently accompanied flooding by the Nation's rivers, one of the issues it faced was the extent to which the federal government would accept liability for damage resulting from these flood control activities. Congress made clear its intent to limit the government's financial exposure by including in the legislation an express, comprehensive affirmation of sovereign immunity: "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" (33 U.S.C. 702c). Prior to the decision below, every court of appeals to construe Section 702c had held that the provision is an absolute bar to monetary liability resulting from flood control projects. The Fifth Circuit's decision radically departs from this settled interpretation of Section 702c and holds the government liable for personal injuries caused by the release of flood waters from flood control projects. This construction of Section 702c conflicts with every other appellate decision interpreting the statute and is contrary to both the plain language and purpose of the provision. Moreover, the decision below is likely to result in the imposition of substantial monetary liability upon the government for damage related to the large number of flood control projects constructed pursuant to this vast federal program. Review by this Court therefore is plainly warranted. 1. The court of appeals' view of the scope of Section 702c conflicts with the settled interpretation of the provision that has been adopted by every other court of appeals to consider the question. Each of these courts has concluded that Section 702c immunizes the government from any liability for damage related to flood control projects. See, e.g., Portis v. Folk Construction Co., 694 F.2d 520, 522 (8th Cir. 1982) (purpose of Section 702c is "to assure the government of absolute immunity for (damage caused by flooding related to) flood control projects"); Morici Corp. v. United States, 681 F.2d 645, 647-648 (9th Cir. 1982) ("if (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 (10th Cir. 1978) (rejecting arguments that Section 702c did not apply to flood damage resulting from the operation of a flood control project in view of "borad and emphatic language of Section 702c"); Parks v. United States, 370 F.2d 92, 93, (2d Cir. 1966) (same). /2/ Prior to the en banc court's decision in this case, the Fifth Circuit also adhered to this view. See Florida East Coast Railway v. United States, 519 F.2d 1184, 1192 (5th Cir. 1975) (Section 702c grants immunity from liability for damage resulting from flood waters in "the broadest and most emphatic language") (footnote omitted). The court of appeals expressly rejected this interpretation of the statute. Although respondents' claims are based upon damage caused by the release of flood waters from flood control projects, and therefore would be barred under the prevailing interpretation of Section 702c, the court of appeals ruled that Section 702c did not immunize the government from these claims. App., infra, 21a-28a. Indeed, the panel's conclusion (id. at 47a-49a, 57a) that it was required by prior Fifth Circuit decisions to hold that Section 702c barred respondents' claims makes clear that the decision below, which overruled the panel decision, conflicts with the settled interpretation of Section 702c. Judge Gee correctly observed in his dissenting opinion that the majority had repudiated the "unanimous construction (of Section 702c that) has stood for three decades" (App., infra, 36a). See also id. at 38a (Higginbotham, J., dissenting). 2. Moreover, the court of appeals' crabbed interpretation of Section 702c is contrary to the provision's plain language and purpose and improperly deviates from the longstanding uniform construction of the statute. /3/ a. It is difficult to imagine a grant of immunity from damages liability more comprehensive than Section 702c: "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." By using all-encompassing terms such as "liability of any kind," "any damage," and "any place," Congress signalled that Section 702c confers blanket immunity from damages liability in the flood control context. National Manufacturing Co. v. United States, 210 F.2d 263, 271 (8th Cir.), cert. denied, 347 U.S. 967 (1954). Indeed, as Judge Gee demonstrated in his dissenting opinion (App., infra, 31a-32a), any attempt to make the provision more comprehensive would "serve small purpose beyond making the enactment read like an insurance company's form general release rather than a statute." Given the plain language of Section 702c, "it requires some ingenuity to create ambiguity." Rothschild v. United States, 179 U.S. 463, 465 (1900). The court of appeals nonetheless concluded that there were "latent ambiguities" in Section 702c (see App., infra, 5a-7a), stating that the term "damage" was "quite equivocal" because it could include damage to land but not damage to persons (id. at 7a & n.7) and that the terms "flood" and "flood waters" were ambiguous (id. at 7a n.6). The court's discovery of "ambiguities" undetected by any other appellate court that has construed Section 702c appears to be a product of the court's eagerness to adopt a narrow construction of the statute rather than the result of an objective evaluation of the statute's terms. For example, Congress's use of the phrases "(n)o liability of any kind" and "any damage" virtually compels the conclusion that all types of damage -- harm to persons as well as to property -- are included within the scope of Section 702c. The court of appeals itself observed with respect to another of these supposed ambiguities that it was not "clear why 'at any place' was tacked on to the sentence, inasmuch as the immunity language is already comprehensive without it" (id. at 7a (footnote omitted)). The reason has been apparent to every court of appeals except for the court below: Congress wrote broadly to endure that the government would not be subjected to monetary liability for any damage related to the federal flood control program. /4/ In addition, the interpretation of Section 702c adopted by the court of appeals directly conflicts with the plain language of the statute. The court stated that the immunity from liability conferred by Section 702c "does not extend to the fault of government employees in failing to warn the public of the existence of hazards to their accepted use of government-impounded water, or nearby land" (App., infra 28a). Thus, where "the presence or movement of water for flood control purposes merely furnishes a condition of the accident, there is no Section 702c immunity" (ibid.). The flaw in this interpretation of Section 702c is that it is contrary to Congress's declaration that the government is immune from liability for "any" damage "from or by" flood waters, without regard to the character of the act that caused the damage. Congress plainly concluded that in view of the vast scope of the flood control program, the fact that the damage was caused by flood waters was a sufficient reason to bar liability. The court of appeals' determination to qualify that immunity "simply brushes (the statute's plain words) aside and substitutes for them the court's notions of good policy" (App., infra, 32a (Gee, J., dissenting)). /5/ b. The interpretation of Section 702c adopted by the court below also undercuts Congress's purpose in enacting Section 702c. The Flood Control Act of 1928, which contained Section 702c, marked the beginning of the federal government's effort to control flood waters, and thereby prevent the loss of human life and property that invariably accompanied flooding by the Nation's rivers, through the construction of massive systems of levees, dams, reservoirs, and spillways. /6/ Congress realized that the cost of the program would be enormous -- estimates ranged from $300 million to over $500 million (H.R. Rep. 1100, 70th Cong., 1st Sess. 13, 21-22 (1928)); 60 Cong. Rec. 5485 (1928) (statement of Sen. Jones) -- and one of its main concerns was ensuring that the federal government's financial liability would not be expanded beyond these direct costs. In a message to Congress concerning the flood control proposals, President Coolidge stated that "it would be very unwise for the United States in generously helping a section of the country to render itself liable for consequential damages" (69 Cong. Rec. 7126 (1928)). A number of congressmen also expressed the view that the federal government should not be liable for costs other than the direct cost of constructing the project. See id. at 7028 (statement of Rep. Spearing); id at 6999-7000 (statement of Rep. Frear); id. at 6641 (statement of Rep. Snell). This congressional concern undoubtedly was the motivating force underlying the enactment of Section 702c. Congress restated the government's sovereign immunity from damages liability in order to make clear that the only costs of the flood control program that would be borne by the United States were the costs that the government specifically assumed by statute. As the court concluded in National Manufacturing Co. v. United States, supra, the first appellate decision to construe Section 702c, "when Congress entered upon flood control on the great scale contemplated by the (Flood Control) Acts it 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. The cost of the flood control works itself would inevitably be very great and Congress plainly manifested its will that those costs should not have the flood damages that will inevitably recur added to them." 210 F.2d at 270; accord Callaway v. United States, 568 F.2d at 686; Graci v. United States, 456 F.2d 20, 25-26 (5th Cir. 1971); Peterson v. United States, 367 F.2d 271, 275-276 (9th Cir. 1966). /7/ The court of appeals offered a revisionist view of Section 702c, asserting that Congress intended to address only damage directly associated with the construction of flood control projects, such as damage resulting from the rerouting of flood waters by such projects (App., infra, 8a, 12a, 18a). In support of this interpretation, the court stated that Section 702c replaced a provision in the Senate bill providing monetary compensation for property damaged as a result of the implementation of a flood control plan, and thus that "the disclaimer of liability must be read as a direct negation or repudiation of the provision it superseded, which would have provided munificence to those whose property was affected (by a flood control project)" (App., infra, 17a). Therefore, according to the court of appeals, Section 702c only bars claims by property owners for damage caused by the construction of flood control projects. The court of appeals' conclusion is based upon an erroneous analysis of the legislative history. The House debate makes clear that the provision that became Section 702c was an addition to the Senate bill, not a substitute for an existing provision. See 69 Cong. Rec. 7022-7023 (1928). /8/ Thus, Section 702c cannot be interpreted by reference to the limited scope of the Senate bill provision. /9/ In addition, Congress could have accomplished the narrow purpose attributed to Section 702c by the court of appeals simply by deleting the offending provision of the Senate bill. Accordingly, Section 702c must have been intended to serve the broader purpose of restating the government's sovereign immunity with respect to all aspects of the flood control program. Moreover, even the court of appeals declined to construe Section 702c in the manner dictated by its analysis of the legislative history. The court summarized its view of the legislative history by stating that "(i)t seems doubtful that Congress intended to shield the negligent or wrongful acts of government employees -- either in the construction or in the continued operation of the Mississippi (flood control) plan" (App., infra, 18a-19a). Yet it held that the statute does immunize the government "for any fault of its employees in controlling floodgates or managing lands to contain, prevent, or manage floods or floodwaters" (id. at 27a-28a). This conclusion indicates that the court itself may not have been persuaded by its reading of the legislative history. c. Finally, the court below erred by rejecting the settled, unanimous construction of Section 702c. This Court several times has recognized that it is appropriate to adopt the construction of a statute supported by "longstanding (judicial) interpretation and * * * continued congressional silence" (Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 200-201 (1974)). See also Flood v. Kuhn, 407 U.S. 258, 283-285 (1972); Missouri v. Ross, 299 U.S. 72, 75 (1936). Here, the court of appeals should not have rejected the interpretation of Section 702c that has been settled for over 30 years. Judge Higginbotham correctly concluded that the court should have "defer(red) to the longstanding and unanimous construction placed on Section 702c by (the Fifth Circuit) and other courts" and that "(t)he task of changing such a settled construction should * * * be left to Congress" (App., infra, 38a). 3. Congress enacted Section 702c because it realized that it was embarking upon a vast public works program that might greatly increase the government's financial exposure. Congress's expectations have been realized in the scope of the government's present-day flood control program. /10/ Several different federal agencies operate projects designed to control flood waters. Thus, the Army Corps of Engineers administers approximately 518 flood control structures, the Bureau of Reclamation operates some 54 reservoirs that serve flood control purposes, the Soil Conservation Service administers approximately 8,592 flood control dams, and the Tennessee Valley Authority operates or manages some 35 dams that serve flood control purposes. /11/ Flood control dams typically are attached to reservoirs that retain flood waters, and many of the reservoirs in these projects are extremely large. In view of the vast size of the flood control program, the rule adopted by the court below is likely to subject the government to enormous financial liability. Damage to both persons and property is unavoidable in an undertaking of this magnitude because it is simply impossible to monitor the operation of all of these flood control structures. /12/ The unpredictability of water levels increases the difficulty of this task. Even within the Fifth Circuit the government's potential financial exposure is quite large, because more than 2000 flood control structures are located in this area. Thus, if the interpretation of Section 702c adopted by the court below were confined to the Fifth Circuit, the decision still would increase the government's liability substantially. In the present cases alone, for example, the judgments exceed $1 million. Review by this Court is warranted to uphold Congress's determination that the government should be immune from liability for damage related to the flood control program. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Acting Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General ANDREW J. PINCUS Assistant to the Solicitor General JOHN F. CORDES IRENE M. SOLET Attorneys September 1985 /1/ The district court opinion erroneously identifies Joseph Clardy as the decedent (App., infra, 60a-61a). /2/ See also Pierce v. United States, 650 F.2d 202 (9th Cir. 1981); Aetna Insurance Co. v. United States, 628 F.2d 1201 (9th Cir. 1980), cert. denied, 450 U.S. 1025 (1981); Burlison v. United States, 627 F.2d 119 (8th Cir. 1980), cert. denied, 450 U.S. 1030 (1981); Taylor v. United States, 590 F.2d 263 (8th Cir. 1979); Lenoir v. Porters Creek Watershed District, 586 F.2d 1081 (6th Cir. 1978); McClaskey v. United States, 386 F.2d 807 (9th Cir. 1967); Clark v. United States, 218 F.2d 446 (9th Cir. 1954); National Manufacturing Co. v. United States, 210 F.2d 263 (8th Cir.), cert. denied, 347 0U.S. 967 (1954). /3/ Although Section 702c was enacted as part of the Flood Control Act of 1928, the provision consistently has been interpreted to bar liability for damage related to flood control projects authorized by other statutes. See Aetna Insurance Co. v. United States 628 F.2d 1201, 1204 (9th Cir. 1980), cert. denied, 450 U.S. 1025 (1981); Lenoir v. Porters Creek Watershed District, 586 F.2d 1081, 1086 & n.4 (6th Cir. 1978); National Manufacturing Co. v. United States, 210 F.2d 263, 270 (8th Cir.), cert. denied, 347 U.S. 967 (1954). The Courtableau Drainage Structure is part of a project that was authorized by the Flood Control Act of 1928, as amended in 1936 (see 33 U.S.C. 702a-4 and 702a-6) and the Millwood project was authorized by the Flood Control Act of 1946 (see ch. 596, 60 Stat. 641, 647). The court below criticized the decisions holding that subsequent flood control acts had reenacted Section 702c, but did not dispute that Section 702c was applicable to damage related to these projects (see App., infra, 24a-25a n.23). /4/ The court of appeals stated (App., infra, 6a-7a n.5) that the Congress that enacted Section 702c considered the immunity provision ambiguous, but the authorities cited by the court do not support this assertion. There is no reference to Section 702c in the portion of the congressional debates quoted by the court of appeals (see 69 Cong. Rec. 8187 (1928) (remarks of Sen. King)). In addition, the committee report cited by the court states that the proviso of Section 702c was amended to clarify its meaning; the report does not refer to the portion of the statute setting forth the government's immunity from liability for damages (see 69 Cong. Rec. 8119 (1928)). /5/ The court of appeals intimated that its decision "elaborate(s) more particularly" the limitations on the government's immunity articulated in previous cases (App., infra, 27a). Some courts have stated that Section 702c does not apply when damage is caused by an act that is "wholly unrelated to any Act of Congress authorizing expenditures of federal funds for flood control, or any act undertaken pursuant to any such authorization." Peterson v. United States 367 F.2d 271, 275-276 (9th Cir. 1966); see also Morici Corp. v. United States, 681 F.2d at 647-648; Hayes v. United States, 585 F.2d 701, 702-703 (4th Cir. 1978); Graci v. United States, 456 F.2d 20, 26-27 (5th Cir. 1971). In Peterson, for example, the court held that Section 702c did not confer immunity from liability because the plaintiff's claim was based upon a flood that resulted from the dynamiting of an ice jam by government employees. However, these cases provide no support for the conclusion of the court below that damage resulting from the operation of flood control projects for flood control purposes is outside the scope of the immunity conferred by Section 702c. /6/ The federal government previously had participated in a joint project with state and local authorities to construct levees in order to contain the flood waters of the Mississippi River. This approach to flood control was proven unsuccessful by the disastrous flood of 1927, and the 1928 statute reflected a new approach under which flood waters would be diverted along predetermined courses through the use of dams and spillways in addition to the construction of levees designed to confine the river to its banks. H.R. Rep. 1100, 70th Cong., 1st Sess. 14 (1928); H.R. Rep. 1072, 70th Cong., 1st Sess. 5-7, 17 (1928); App., infra, 12a-13a. /7/ The only portion of the legislative history that specifically addresses the meaning of the grant of immunity contained in Section 702c confirms this conclusion. A congressman stated that "(w)hile 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 (resulting from flooding)" (69 Cong. Rec. 7028 (1928) (statement of Rep. Spearing)). Section 702c thus was viewed as a restatement of the government's sovereign immunity from damages liability. /8/ In fact, the provision cited by the court of appeals was superseded by another provision discussing the acquisition of flowage rights with respect to property damage caused by the diversion of flood waters by flood control projects. See 33 U.S.C. 702d; 60 Cong. Rec. 7030-7031, 7104-7113 (1928). /9/ The court of appeals also justified its interpretation of Section 702c on the grounds that the congressional debate related only to claims for property damage and that the terms "liability" and "damage" were used during the debate to refer to damage caused by the construction of flood control projects (App., infra, 8a). However, the court of appeals presented no evidence that Congress intended to limit the scope of Section 702c to these circumstances. Even if the congressional debate did focus upon property damage of this type, that fact "does not create a 'negative inference' limiting the scope of (Section 702c) to the specific problem that motivated its enactment" (Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 679 (1983)). See also American Bank & Trust Co. v. Dallas County, 463 U.S. 855, 867 (1983). /10/ As we discuss above (see page 12 note 3, supra), Section 702c applies to all federal flood control projects. /11/ This information was supplied to us in each case by the agency that operates the facilities. /12/ Although this case involves personal injuries, it is not clear that the Fifth Circuit views its rule as restricted to this context. A Fifth Circuit panel recently reversed and remanded a case involving property damage in which the district court had granted the government's motion for summary judgment on the ground that the government was immune from liability under Section 702c. Stelly v. United States, 598 F. Supp. 344 (W.D. La. 1984), rev'd and remanded, No. 85-4015 (5th Cir. Aug. 1, 1985). APPENDIX