Opposition Brief — Tillman v. United States

Opinions below

Jurisdiction

Questions presented

Statutes involved

Statement

Argument

Conclusion

Appendix

[NDESA

CITATIONS

19

Cases:

Aune Vv. Oregol Trunk Ry Fae. G22. 31 P. 2d 663

Clark v. United States, 218 F. 2d 446 11.

Comstock ¥. Group of Inve sfors, 300 E: te ie

(osgro 2. Trace UR 156 Cir. i. 64 r. 2d 132)

Indian Towing

National Affq

Palsgraft \

N. E. 99

Statutes:

Federal Tort C

28 U.S.C

28 U.S.C

28 U.S.C

U.S.C

Flood Control

430. 5.0

Miscellaneous:

Prosser on Tort

Restatement of

Section 28

5783 —5O——1

Section 4380

io. ¥.

('o. \N > ted Ntates

certiorari denied, 347 U.S. 967

Long Island R («

Shutt v. Hull, 193 Or. 18, 286 P. 2d 937

laims Act:

1346 (b P

. 2401 (a

Act of 1928, 45 Stat

7TO2c) Secvion

s, p- 177 ff --

the Law, Torts:

l rn

Ui ited Ntate S. 350 pa “a ie 61

2948 N.Y

162

1)

re

Gn the Supreme Court of the United States

OcToBER TERM, 1956

No. 296

Mrart C. TupMan anp Emiry P. TILLMAN,

PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the United States District Court

for the District of Oregon (R. 127-138; Pet. App.

31-41) is not reported. The opinion of the Court of

Appeals (Pet. App. 41-48) is not yet reported.

JURISDICTION

The judgment of the Court of Appeals was entered

on April 9, 1956 (Pet. App. 48). A timely petition

for rehearing was denied on May 15, 1956. The peti-

tion for a writ of certiorari was filed on August 1,

1956. The jurisdiction of this Court is invoked under

28 U. S. C. 1254 (1).

3}

»

QUESTIONS PRESENTED

1, Whether the courts below correctly held that, on

the concurrent fact findings which petitioners dispute,

and as a matter of the local law which applies under

the Tort Claims Act, the United States was not lable

for the flood damage sustained by petitioners.

2. Whether, in light of the Flood Control Act of

1928, the United States can be held lable for flood

damage resulting from the 1948 flood of the Columbia

River and its tributaries.

STATUTES INVOLVED

The pertinent provisions of the Federal ‘Tort Claims

Act (28 U.S. C. 1346 (b), 2671, ef seq.) and of the

Flood Control Act of 1928 (45 Stat. 5384, 535, 536 (33

U.S. C. 702c¢)), are set forth in the Appendix, tnfra,

pp. 19-20,

STATEMENT

During the latter part of May, 1948, the Columbia

River and its tributaries in the Pacific-Northwest

were in flood. More than fifty cities and towns, to-

gether with suburban and agricultural areas, were

affected to a greater or lesser degree. During the

high water period more than 10,000 persons partiei-

pated in a flood fight which involved 475 miles of

levees protecting approximately 200,000 acres of land.

Before the flood was over, it caused property damage

estimated at $100,000,000, and 400,000 acres of land

were inundated, including the land encompassed by

Oregon Peninsula Drainage Districts No. L and No,

2 (R. 80-82). The present litigation is the outgrowth

of the flooding of Drainage District No. 2. This case

9

os)

is the pilot case for 52 property damage claims against

the United States which were consolidated in’ the

District Court for the purpose of determining gov-

ernment liability (R. 13, 139).

1. Peninsula Drainage Districts Nos. 1 and 2.—

Peninsula Drainage Distriets Nos. 1 and 2 are located

on the outskirts of Portland, Oregon, along the

couthern bank of the Columbia River, approximately

five miles above the confluence of the Columbia and

Willamette Rivers (R. 15, 16). The area between the

confluence of the rivers is open land subject to flood

during periods of high water. District No. 1 is pro-

tected on three sides by levees: on the north along

the river (R. 30), on the south along Columbia Slough

(R. 31), and on the west by the western embankment,

so-called. a structure consisting of two railroad fills

and a highway fill (R. 38). Along the eastern

houndary of District No. 1 is a highway known as

Denver Avenue, and beyond and to the east of the

highway is Drainage District No. 2 CR. 16). District

No, 2 is surrounded by its own levee system: on the

north along the river (R. 16), on the south along Co-

lumbia Slough (R. 16) and on the east along an ex-

eavated channel known as the City Cut. The

combined levee systems of the two Districts com-

pletely enclose both Districts Nos. 1 and 2. Along

the western boundary of Drainage Distriet No. 2, as

noted above, lies Denver Avenue (R. 16). See map,

Pet. App. 63.

Peninsula Drainage District No. 1, the downstream

district. was organized on June 1, 1917 (R. 25). At

that time the fill which carries Denver Avenue was

4

already in existence (R. 30) and the railway fills

along the west side of the district were, or were about

to be, constructed (R. 30). Shortly thereafter, on

September 25, 1917, District No. 2 was organized

(R. 17, 302-333). During the following year the

District No. 1 levees were completed (R. 30-31) and

within a vear or two District No. 2 had built levees

on the north, south and east (R. 17), thus completing

the levee protection for the two Districts. In the

period between 1986 and 1941, the Corps of Engineers

raised and reconstructed the north and south levees of

District No. 1 (R. 32, 35) and the north, south and

east levees of District No. 2 (R. 19, 22). The work

of the Corps of Engineers at Distriet No. 1 was

completed in 1941 (R. 34), and at Distriet No. 2 in

1940 (R. 22). The levees surrounding both drainage

districts do not belong to the United States (R. 22,

3).

2. Denver Avenue.—Highway traffic going north

from Portland crosses the Columbia River on the

so-called Interstate Bridge. Denver Avenue, the

boundary running north and south between District

No. 1 and District No. 2, and the fill supporting it

were constructed in 1915 and 1916 as an approach to

this bridge by Multnomah County at the expense of

the Interstate Bridge Commission (R. 22)... The In-

2 The fill was constructed on a right-of-way conveyed in fee

to Multnomah County by Peninsula Industrial Company by a

deed dated March 16, 1915 (R. 23,455). The deed also granted

slope easements to the county, that is, the right to locate the slopes

of the fill on the adjoining property of the grantor (R. 457).

The deed reserved to the grantor the right to construct public

and private highway crossings (R. 458), railroad tracks (R.

x)

terstate Bridge Commission transferred contro! of

Denver Avenue to Multnomah County on January 1,

1929 (R. 27). On March 26, 1937, the Oregon State

Highway Commission took charge of Denver Avenue

and on that date Denver Avenue became an Oregon

state highway (R. 27). Since then, Denver Avenue

has been owned by the State of Oregon and con-

trolled by the Oregon State Highway Department

(R. 28). Denver Avenue has been in regular use as

a public highway since it was first constructed in

1915 and 1916 (R. 28). It is one of the principal

approaches to the Interstate Bridge (R. 245) and it

is heavily traveled.

(a) The Denver Avenue Underpass—During the

summer of 1942 Kaiser Company, Inc., in order to

provide war housing for its shipyard employees

(R. 45), contracted with the Federal Public Housing

Authority to construct, within District No. 1, on

a cost-plus-a-fixed fee basis, a housing project known

as Vanport (R. 47). Since Vanport was to provide

housing for several thousand persons (R. 47), high-

way access to and from the area had to be provided.

Denver Avenue, which parallels the project, was avail-

458), underground pipes and conduits (R. 459) and two deep

water channels “not to exceed one hundred (100) feet in width”

across, under or through the right-of-way (R. 459). The deed

went on to provide that it was made upon the express condition

“that the seid Multnomah County shall within three (3) years

from the date of this conveyance construct or cause to be con-

structed and thereafter maintained * * * a fill and embank-

ment” on the property “and shall, within said period, provide

and thereafter maintain a public highway over said Parcel B

which shall be reasonably sufficient for the accommodation of

public travel thereover * * *° CR. 461-2),

6

able for this purpose. But because of the heavy

traffic on Denver Avenue to and from the Inter-

state Bridge any arrangement whereby Vanport traf-

fie would cross Denver Avenue traffic at grade would

have been ‘‘highly dangerous’? (R. 246, 283). Ac-

cordingly, the Kaiser interests proposed to the Oregon

State Highway Commission that an underpass be

constructed through Denver Avenue, thus permitting

the Vanport traffic to enter Denver Avenue without

crossing it (R. 283). The Highway Commission

approved this proposal (R. 246) and furnished de-

tailed plans and specifications for the underpass

(R. 49, 288, 290, 292). The underpass was con-

structed in accordance with the Commission plans

(R. 49) under the supervision of a Commission

engineer (R. 50). The actual work was done by a

Portland contractor (R. 49) under a contract (R. 259-

281) with Kaiser approved by the Federal Public

Housing Authority (R. 281). Work on the under-

pass began in November, 1942, and was completed

in February or March, 19483 (R. 49-50).

(b) The ring levee.—By condemnation proceedings,

commenced January 12, 1943, the United States

acquired 4.53 acres of land in the area to the east

of the Denver Avenue underpass (R. 58). On

January 7, 1944, the United States filed a petition

for condemnation and obtained possession of 136.11

acres to the east of Denver Avenue on which was

constructed a temporary housing development known

as Hast Vanport (R. 58).

7

About the time the Denver Avenue underpass was

being constructed, a semi-circular ring levee was built

around and to the east of the underpass (within

District No. 2) on land owned by the United States

(R. 58). The work was done by the contractors

working on the underpass (R. 50). The ring levee

was completed in April, 145 CR. 90). In the fall

of 1943. a Portland contractor, acting pursuant to

arrangements with one of the Vanport subcontractors

and in accordance with plans prepared by Kaiser

Company, Inc., raised the elevation of the ring levee,

widened its top and placed a clay blanket on its

eastern or outside slope CR. 50-51, 296, 301). In

the spring of 1944 employees of the Housing Authority

of Portland CHAP), the lessee of the Vanport and

Kast Vanport housing projects, discovered cracks

and sloughs in portions of the ring levee (R. 54).

In the summer or fall of that year, HAP employees

repaired the levee by capping the erown, reworking

the areas where sloughs had oceurred and filling in

the eracks (R. 54). There was no further difficulty

with the levee (R. 418) prior to May 31, 1948 (R. 54).

3. The flooding of Districts Nos. 1 and 2.—On the

afternoon of May 30, 1948, the railread and highway

fills which constituted the western embankment at

District No. 1 failed (R. 80), permitting tlood water

to fill Distriet Now 1 CR. S81), thereby flooding and

destroying Vanport. The following morning, District

No. 2 was evacuated by order of the Oregon Governor

(R. 81).

SOKHTSS—HE—— 2

8

As the flood waters filled District No. 1. they

advaneed across the district and began to exert

pressure on the Denver Avenue fill and, by passing

through the Denver Avenue underpass, on the ring

levee. Trouble first developed, not with the ring levee,

but with the fill itself at the site of a large culvert,

approximately five feet by five feet in size, constructed

through the fill at about ground level (R. 53). The

flood water blew out the plugs in the culvert and the

fill began to cave and slough (R. 184, 209-210, 217,

248), but the culvert was replugged, thus averting

a failure at that point. Shortly thereafter, however,

the ring levee suddenly broke, permitting the flood

water to enter District No. 2 (R. 81).

The failure of the ring levee permitted the tlood

waters to advance across District No. 2 from Denver

Avenue to Union Avenue, another highway fill so

located that it bisects the Distriet in’ a diagonal

fashion (R255). Union Avenue held the water for

two or three hours; then it, too, failed (R. 81),

permitting the flood to inundate the entire District

and thus to contribute to the damage which gave rise

to these actions (R. 81).

4. Proceedings in the courts below.—Vhe complaint

In this case CR. 8-8) was filed on December 15, 1949.

The jurisdiction of the District Court was invoked

under the Federal Tort Claims Act (R.3). Se far as

is now material, it was alleged that flood damages

totalling 86,987.45 were sustained by petitioners “he-

cause of the wrongrul and tortious act of the Fed-

eral Public Housing Authority and the U.S.

Army Corps of Engineers, as agents and instrumen-

a]

9

talities of the defendant, in cutting, severing and re-

moving a portion of said Denver Avenue levee” as a

result of which “the levee was rendered useless as a

protection against the flood waters”? (R. 6-7).

The case was tried by the District Court primarily

upon an agreed statement of facts (I. 14-84), incor-

porated in the court’s pre-trial order CR. 13) and

adopted as part of its findings of fact (R. 139). In

addition to the agreed facts, the District Court, inter

alia (R. 139-146), found that the sole cause of the

damage complained of was the failure of the western

embankment of District No. 1 which had been adopted

hy both Districts Nos. L and 2 as one of the flood

protective works; that the wesiern embankment was

not built by the United States; that the United States

did not own the greund on which it stood, and did

not on the date of failure, or previously, exercise any

control over the structure (R. 142). The court found

that Denver Avenue was built and has ever since

been used for highway purposes; that it was not in-

tended to be a levee and was not designed as a water-

repellent wall or structure; that the Plan for Ree-

lamation of District No, 2 stated that no reliance was

placed on Denver Avenue and Denver Avenue is men-

tioned only casually as furnishing additional protec-

tion; that between 1934 and 1944, the United States,

through the Corps of Engineers, reconstructed the

north, south and cast levees of District No. 2, which

approved the plans but made no request that Denver

Avenue be strengthened as part of the protective

works; that neither Multnomah County, the State of

Oregon, nor the United States had any obligation to

10

maintain Denver Avenue as a levee or for flood pro-

tection purposes (R. 148).

The court further found the water which inundated

District No. 2 approached Denver Avenue from the

west, @. e., from downstream; that, in the exercise of

due care, there was no reason to anticipate the failure

of the western embankment of District No. 1 and no

reason to anticipate that flood waters would ever ap-

proach Denver Avenue from the west; that no one

contemplated Denver Avenue as a bulwark against

a weight of water such as was cast against it when

the western embankment broke; that the failure of

the ring levee and the inundation of District No. 2

resulted from a set of circumstances unforeseen and,

in the exercise of due care, unforeseeable (R. 143-

144): and that the construction of the underpass and

the failure to provide an unbreakable ring levee was

not the cause, proximate or otherwise, of any damage

to petitioners (R. 144).

The court went on to find that there was a failure

of proof of any negligence or wrongful act on the

part of the United States or its employees; that there

was a failure of proof that the construction of the

underpass or the construction and maintenance of the

ring levee violated any right of petitioners, or that

the ring levee was not constructed for a proper pur-

pose or Was Inadequate for the purpose intended (R.

145-146).

As a matter of Oregon tort law, the District Court,

upon the facts as agreed and as found, denied recovery

(R. 146-147) and further concluded that 33 U.S. C.

11

702e (Appendix, tufra, p. 20), which precludes the

imposition of liability for flood damage upon the

United States, was an absolute defense to the actions

(R. 147).

On appeal, the Court of Appeals affirmed (Pet. 48).

The appellate decision rests upon two grounds: (1)

that “the findings of the trial court are fully sub-

stantiated by the transcript of record” and preclude

recovery (Pet. App. 45), and (2) in accordance with

the ruling in the prior litigation arising from the

flooding of District No. 1) that 33 U. S. C. T02¢

bars recovery on these claims from the United States

(Pet. App. 49-46).

ARGUMENT

Applying conventional principles of local tort law

to the particular facts of this case, both courts below

have agreed that there is uo factual or legal basis for

the imposition of ability upon the United States.

As an additional, independently sufficient ground of

decision, they also agreed that petitioners’ claims are

precluded by the express statutory prohibition against

holding the United States liable for flood damage.

These concurrent rulings are clearly correct, and there

is neither a contlict nor any other basis for further

review by this*Court.

1. (a) The District Court found as a fact CR. 145;

Pet. App. 52), and the Court of Appeals agreed

(Pet. App. 46-47), that the sole and proximate cause

of petitioners’ damage was “the failure of the western

embankment at District No. 1° (R. 142; Pet. App.

? Mark v. United States, 218 F. 2d 446 (C. As Das

6 A IR RN ee

ee ee es

ee et a eee art

3)

12

52). It was further found and agreed that the land

on which the western embankment rests “does not

helong to the United States’? (R. 42, 142) and that

the embankment was not built, maintained or con-

trolled by the United States (R. 142; Pet. App. 52).

The Tort Claims Act, following the general tort

rule, permits the imposition of tort liability upon

the United States only when the damage complained

of is “caused by the negligent or wrongful act or

’ of a Government employee. 28 U. S. C.

1346 (b) (emphasis added). Here, no negligent act

of the United States or its employees was in any

omission’

Way associated with the failure of the western em-

bankment. Clearly, therefore, there is no basis in

fact for holding the United States responsible for

petitioners’ damage, proximately caused by the failure

of the embankment. Schutt vy. Hull, 193 Or. 18, 236

P. 2d 937; Cosgrove v. Tracey, 156 Or. 1, 64 P. 2d 1321:

Aune v. Oregon Trunk Ry., 151 Or. 622, 51 P. 2d

663; Restatement of the Law, Torts, § 430.

(b) Inquiry as to the Government’s liability for

petitioners’ damage might well end with the factual

determination that the sole cause of petitioners’

damage was the failure of the western embankment,

for which the United States was in no way respon-

sible. It should be noted, however, that apart from

this weakness, there are additional factual answers to

petitioners’ claim.

Petitioners’ contention that the severance of the

Denver Avenue fill and the construction of the under-

pass were wrongful is based upon the premise that the

13

Denver Avenue fill was designed as a levee for flood

protection, rather than for highway purposes as found

by the District Court (R. 142-143; Pet. App. 53).

Since the underpass was built ‘“*by contractors under

the sole supervision, jurisdiction and control of the

Oregon State Highway Commission” (Pet. App. 47),

it is difficult to see how petitioners” argument in this

respect materially advances their claim against the

United States. But in any event the underlying

premise that Denver Avenue was a levee finds no

evidentiary support in the record.

The Denver Avenue fill was built before Drainage

Districts No. 1 and 2 were organized (R. 17, 22, 25).

While it ultimately became a common boundary be-

tween the two Districts, it was built exclusively for

highway purposes by the County of Multnomah, at

the expense of the Interstate Bridge Commission, as

a vehicular approach to the Interstate Bridge (R.

22). It has always been used for highway purposes

(R. 28). Prior to May, 1948, Denver Avenue was

never considered to be a levee or dike by Drainage

District No. 20 OR. 384338, 339, 342, 344) for the

obvious reason that, while Denver Avenue was a com-

mon boundary between Districts Nos. 1 and 2, the

flood protection of both Distriets was from the com-

bined levees systems which completely enclosed both

Districts. Moreover, neither the County of Multno-

See the right-of-way deed of 1915 (R. 455-465) and the cor-

rection deed of 1926 (R. 465-468). which make it clear that the

conveyance to Multnomah County in 1915 was primarily for

highway purposes.

14

mah (R. 455-463, 465-468), the State of Oregon nor

the State Highway Commission (R. 246-247, 255,

289-290) regarded the Denver Avenue fill as a dike

or levee. And since it was not intended to be a dike

or levee, the fill was not constructed as a dike or levee

(see R. 53), nor was it maintained by either District

as the levees surrounding the Distriets were main-

tained (R. 19-22, 32-55).

In short, the record anply supports the finding of

the District Court, sustained by the Court of Appeals,

that neither the County of Multnomah, the State of

Oregon, nor the United States had any ‘obligation

to maintain Denver Avenue as a levee or for flood

protection purposes’? CR. 1438: Pet. App. 93). And

beeause Denver Avenue is a State highway, on land

owned by the State and maintained by the State

CR. 27-28), there was, of course, no impropriety or

breach of petitioners’ rights, when, at the stggestion

of Kaiser Company, Ine. (R. 48-49), and according

to plans drawn up by the State and under State

supervision (R, 246), the Denver Avenue underpass

Was constructed by private contractors (R. 49) under

a contract with Kaiser Company, Ine. approved by

the Federal Publie Housing Administration (R. 281).

It is universally recognized that one of the essen-

tial elements of a tort action is that the conduet com

plained of must have invaded an interest whieh Is

entitled to protection. The same element is essential

to a recovery against the United States under the

Tort Claims Aet. 28 UL S.C. 1346 (b), 2074, Appen-

dix, ‘vfra, pp. 19, 20. Here, it not only appears that

the severance of the fill and the construction of the

15

J

underpass, of which petitioners complain, were not

the acts of employees of the United States, but, as

found by the courts below, that the United States

owed no duty to District No. 1 or 2 to provide flood

protection in any form whatsoever. Clark v. United

States, 218 F. 2d 446, 452 (C. A. 9). In these cir-

cumstances, there is no room for quarrel with the

judgments of the courts below. Restatement of the

Law, Torts, § 281; Prosser on Torts, p. 117 ff; Pals-

graf v. Long Island R. Co., 248 N. Y. 339, 341, 162

N. E. 99.

Nor did the United States become obligated to fur-

nish flood protection to petitioners by the erection of

the ring levee on land condemned = by the United

States. With respect to the ring levee the District

Court found that its purpose was to afford some

protection to District No. 1 against the possible over-

flow of the upriver dikes of District No. 2. to the

east of the ring levee, which were lower than the

levees of District No. 1 (R. 43-44, 141; Pet. App. 52).

There was no proof that the ring levee was inade-

quate for this purpose or improperly repaired or

maintained (R. 145; Pet. App. 55). Though contra-

dicted. there was expert testimony that the ring levee

afforded secondary protection to District No. 2

against water coming from the west comparable or

superior to that afforded by the Denver Avenue fill

(R. 227-228, 243). And, though again there is testi-

mony to the contrary (R. 205), R. H. Baldock, the

chief engineer of the State Highway Commission,

and Harry K. Doyle from the Corps of Engineers,

both of whom participated in the Denver Avenue

16

flood fight, testified that in their opinion the Denver

Avenue fill, even in absence of the underpass, would

itself have failed if the ring levee had not (R. 217,

249),

The flood waters approached from the west be-

‘ause of the unforeseeable failure of the western

embankment of District No. 1 (R. 219, 224, 257, 414,

423). And as the District Court found, even Den-

ver Avenue was not contemplated as a ‘bulwark

against a weight of water such as wi as cast against

it when the western embankment at District No. 1

broke”? (R. 143; Pet. App. 54). In short, the fail-

ure of the western embankment, the failure of the

ring levee, the failure of Union Avenue fill (R. 81-

82), the complete inundation of District No. 2. and,

finally, petitioners’ damage, were the result of a set

of circumstances unforeseen and unforeseeable by

anyone, including petitioner (R. 143-144; Pet. App.

54). The United States and its employees breached

no duty owing to petitioners and no negligent or

wrongful act of Government employees has been

shown to support a tort claim against the United

States. Though petitioners argue extensively (Pet.

12-24) with the amply supported concurrent findings

requiring the judgment below, their factual argu-

ments present no basis for review by this Court.

Comstock v. Group of Investors, 335 U.S. 211, 214.

2. While the foregoing considerations are disposi-

tive of the case, both courts below were in agree-

ment that 33 U.S. CG. 702c¢, App., infra, p. 20,

17

independently, an additional bar to recovery on pe

titioners’ flood claims asserted against the United

States. 33 U. S. C. 702c, in pertinent part, pro-

vides that: ‘‘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 pince * * *”

This statutory provision has the effect of immuniz-

ine the United States from flood damage liability

(National Mfg. Co. v. United States, 210 F. 2d 263

VC. A. 8), certiorari denied, 347 U. 8S. 967: Clark

y. United States, 218 F. 2d 446 (C. A. 9)), and de-

feats petitioners’ suit.

3. The question decided by this Court in Indian

Towing Co. Vv. United States, 300 U.S. 61, is not

even remotely involved in this ease, As shown above,

the decision of the Court of Appeals denying recovery

rests upon the application of settled principles of

local tort law to facts peculiar to this case and

upon the statutory prohibition against governmental

liability for flood damage. There is not the slightest

warrant for petitioners’ assertion that the decision

here is in contlict with Indian Towing.

‘Neither is there merit to the constitutional questions which

the petition seeks to raise. The complaint that petitioners were

denied a fair trial (Pet. 26-28) comes for the first time in this

Court. and is frivolous. The claim that the construction of the

Denver Avenue underpass, in 1942 and early 1943, was a taking

of petitioners’ property without just compensation or due proc-

ess of Jaw (Pet. 28) is also baseless, and, in any event, such a claim

was barred by limitations when this Tort Claims Act suit was

filed on December 15, 1949. 28 U. S. C. 2401 (a).

18

CONCLUSION

The decision of the Court of Appeals is correct and

there is no conflict. It is respectfully submitted that

the petition for a writ of certiorari should be denied.

J. Lee RankIN,

Solicitor General.

GEORGE CocHRAN Dovs,

Assistant Atturney General.

Pau. A. SWEENEY,

JOHN G. LAUGHLIN,

Attorneys.

Avcust 1956.

APPENDIN

1. The pertinent provisions of the Federal ‘Tort

Claims Act, as codified in 28 U.S. C., provide:

Section 1346. United States as defendant.

* * * * *

(b) Subject to the provisions of chapter 171

of this title, the district courts * * * shall have

exclusive jurisdiction of civil actions on claims

against the United States, for money damages,

aceruing on and after January 1, 1945, for in-

jury or loss of property, or personal injury or

death caused by the negligent or wrongful act

or omission of any employee of the Government

while acting within the scope of Ins office or

employment, under circumstances where — the

United States, if a private person, would be

liable to the claimant in accordance with the

law of the place where the act or omission

occurred.

* * * * *

SecTION 2671. Definitions.

As used in this chapter and sections 1346 (b)

and 2401 (b) of this title, the term—

‘*Federal agency”’ includes the executive de-

partments and independent establishment of

the United States, and corporations primarily

acting as, instrumentalities or agencies of the

United States but does not imelude any con-

tractor with the United States.

“Emplovee of the government” meludes of-

ficers or emplovees of any federal agency, mem-

bers of the military or naval forces of the

United States, and persons acting on behalf of

a federal agency in an official capacity, tempo-

qi)

20

rarily or permanently in the service of the

United States, whether with or without com-

pensation.

* Sd * = *

Section 2674. Liability of United States.

The United States shall be liable, respecting

the provisions of this title relating to tort

claims, in the same manner and to the same

extent as a private individual under like cir-

cumstances, but she!’ not be liable for interest

prier to judgment or for punitive damages.

* * * * *

2. The 1928 Flood Control Act provides in perti-

nent part (Act of May 15, 1928, 45 Stat. 534, 535, 536

(33 U. S. C. 702c)).

Section 3.

+ ~ * * +

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 economi-

‘ally justified or beeause such construction

would unreasonably restrict the flood channel,

and lands in such stretch of the river are sub-

jected 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 own-

ership of the lands so subjected to overflow and

damage or floodage rights over such lands.

WU S GOVERNMENT PRINTING OFFICE 1986

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