DENNIS FRYMAN, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-147

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Seventh Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A1-A8) is reported
at 901 F.2d 79.  The opinion of the district court (Pet. App. A9-A12)
is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on April 26, 1990.
 The petition for a writ of certiorari was filed on July 23, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS 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 petitioner's
action under the Federal Tort Claims Act for damages arising from
injuries suffered in a lake included in a federal flood control
project.

                               STATEMENT

   Petitioner was seriously injured when he dove into a flood control
lake in Illinois and struck his head on an obstacle beneath the
surface of the water.  The district court dismissed the complaint,
holding that it was barred by the Flood Control Act, 33 U.S.C. 702c.
Pet. App. A9-A12.  The court of appeals affirmed.  Id. at A1-A8.

   1. Lake Shelbyville, an artificial lake located in central
Illinois, is part of the Kakaskia River flood control project.  /1/
The Army Corps of Engineers conducts the project's flood control
operations.  The lake's water level fluctuates during the course of
the year, rising in the spring as flood waters enter and falling in
the summer and autumn as water is released by the Corps to maintain
constant rates of flow through the rivers downstream.  Pet. App. A3,
A7-A8, A9.

   The Army Corps has established recreational areas along Lake
Shelbyville, including the Wilborn Creek Recreational Area.  During
the spring and part of the summer, an island near this recreational
area is under water.  The island emerges when the water falls, and the
island's shoreline is altered by changes in the lake's water level.
Although the island is not part of the Wilborn Creek Recreational Area
or any of the other recreational areas developed by the Corps, it is a
popular picnic spot.  In 1983, two weeks after the island had emerged
from the lake's waters, petitioner was seriously injured when he
struck an underwater obstacle while attempting a shallow, racing dive
near the island.  Pet. App. A3.

   2. Petitioner filed this action under the Federal Tort Claims Act,
28 U.S.C. 2671 et seq., in the United States District Court for the
Central District of Illinois.  The first amended complaint alleged
(Paragraphs 12(a)-12(f), 15(a)-15(f)) that the Army Corps had acted
negligently and willfully in failing (1) to prohibit diving and
swimming at the island, (2) to post or otherwise provide warnings, (3)
to use due care in maintaining Lake Shelbyville, including the island
where the injury occurred, (4) to remove underwater obstacles, and (5)
to provide proper supervision.  The district court granted the
government's motion to dismiss the action, holding that the government
was immune from liability under the Flood Control Act of 1928, 33
U.S.C. 702c.  Pet. App. A9-A12.  Section 702c provides, in pertinent
part (ibid.):

         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 * * *.

   3. The court of appeals affirmed.  Pet. App. A1-A9.  The court
noted the holding of United States v. James, 478 U.S. 597, 605 (1986),
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." Thus, the court of appeals continued,
"every drop of water in Lake Shelbyville is 'flood water' within the
meaning of Section 702c, and the statute blocks recovery if
(petitioner's) injury is 'damage from or by' these waters." Pet. App.
A4.

   The court rejected petitioner's contention that the water in the
lake had "nothing to do" with his injury.  Pet. App. A4.  The court
explained that in this case, as in James, "(w)ater played some role"
in the accident, and "the responsible actors were federal employees"
who had allegedly failed to take precautions to prevent injuries.
Ibid.  "Recharacterizing causes as (petitioner) proposes," the court
observed, "would enable parties to avoid James by playing word games."
Ibid.  The court emphasized that, in James, this Court (id. at A5)

      rejected both the argument that injuries from the recreational
      components of a flood-control project are outside Section 702c,
      478 U.S. at 609-610, and a contention that losses attributable
      to failure to warn of hazards are not covered, id. at 610-12.
      The Court described Section 702c as barring "'any' liability
      associated with flood control", 478 U.S. at 608, and any
      liability arising out of the "'management' of a flood control
      project", id. at 610.

   In Lake Shelbyville, the court of appeals continued,
"(f)lood-control activities increase the probability of injuries such
as (petitioner's)." Pet. App. A7.  The court explained that seasonal
variations in the lake's water level made it difficult to identify
places hazardous to divers or to post signs.  "(B)ecause 'the problem'
is attributable in substantial part to the nature of a flood-control
project," the court reasoned, "a claim based on the theory that the
Corps of Engineers should have closed the island to swimming in order
to protect recreational users is the same in principle as the claim
that the Corps should have closed to boaters the lakes in James." Id.
at A8.  The court reserved the question whether the Flood Control Act
would apply to a case in which flood control activities did not
increase the probability of an injury.  Ibid.

                               ARGUMENT

   1. The court of appeals' decision is consistent with the language
of the Flood Control Act and with the Court's interpretation of the
statute in James.  See Pet. 10-15.  Section 702c 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 * * *."
In James, this Court held that the terms "flood" and "flood waters"
(478 U.S. at 605):

      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.

In this case, it is undisputed that Lake Shelbyville is part of a
federal flood control project.  Thus, as the court of appeals
correctly concluded, "every drop of water in Lake Shelbyville is
'flood water' within the meaning of Section 702c," and petitioner's
injury was within the scope of the immunity conferred by that statute.
 Pet. App. A4.

   James forecloses the contention that statutory immunity is
unavailable if an injury can be attributed to recreational aspects of
a flood control project.  In James, this Court emphasized that the
government's immunity under that provision extends to liability of
"any kind * * * for any damage from or by floods or flood waters at
any place," adding that it is "difficult to imagine broader language."
478 U.S. at 604.  The legislative history, the Court continued, shows
"that the sweeping language of Section 702c was no drafting
inadvertence" and that "Congress clearly sought to ensure beyond doubt
that sovereign immunity would protect the Government from 'any'
liability associated with flood control." Id. at 608.

   Neither the language of Section 702c nor the reasoning of James
permits the distinction petitioner would draw between injuries
sustained while a flood control lake is "actively involved in flood
control activities" and those "occurring as a result of the
recreational operation of a facility not involving flood control
operations." Pet. 11.  Nothing in the statute ties the immunity to the
nature of the activities or operations in which government employees
are engaged at or before the time of an injury.  Indeed, one of the
decisions reversed in James had held that the government was not
immune if "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."
James v. United States, 760 F.2d 590, 603 (5th Cir. 1985).  This
Court's decision in James must be taken as a rejection of that test.
Similarly, James made clear that Section 702c extends to claims framed
in terms of failures to warn recreational users of hazards on flood
control lakes, explaining 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." 478 U.S. at 609-610.

   The distinction petitioner proposes is also unworkable.
Recognition of that distinction would, as the court of appeals noted,
"enable parties to avoid James by playing word games." Pet. App. A4.
The Ninth Circuit has also emphasized the impracticability of
attempting to distinguish "between the active and passive operations
of federal flood control facilities," recognizing that "a passive
condition is invariably the result of other active forces which have
gone before." McCarthy v. United States, 850 F.2d 558, 561 (1988),
cert. denied, 489 U.S. 1052 (1989).  In this case, the government's
immunity should not be affected by whether the cause of the injury is
alleged to be the design of the flood control project, operations said
to expose swimmers to risks caused by underwater obstructions, a
failure to warn of those hazards, or some other characterization of
the government's allegedly negligent acts or omissions.

   Contrary to petitioner's contention (Pet. 11-12), James's passing
reference -- in a string citation in a footnote, 478 U.S. at 605-606
n.7 -- to Hayes v. United States, 585 F.2d 701 (4th Cir. 1978), does
not suggest otherwise.  /2/ As we have demonstrated, the reasoning of
James is inconsistent with any effort to limit the Flood Control Act
to active flood control operations;  the Court cannot fairly be deemed
to have adopted a fundamentally different understanding of the statute
by means of a footnote citing to Hayes.  In fact, as the court of
appeals noted, the same footnote cited Morici Corp. v. United States,
681 F.2d 645 (1982), a case in which the Ninth Circuit specifically
rejected the Hayes court's suggestion that flood control immunity
depends on "the particular use to which the project was being put when
the negligence occurred" (681 F.2d at 647).

   In short, the court of appeals correctly concluded that the Flood
Control Act bars petitioner's claims.  That determination is
consistent with James.  Especially in view of the undisputed fact that
flood control operations cause the waters of Lake Shelbyville to rise
and fall and thus affect the risks that underwater obstacles pose to
swimmers, the reasoning of James supports dismissal of the action.
/3/

   2. There is no inter-circuit conflict calling for this Court's
review.  See Pet. 7-10.

   This is one of six cases since James in which the courts of appeals
have rejected claims closely analogous to petitioner's.  In addition
to the Seventh Circuit in this case, the Third, Eighth, and Ninth
Circuits have held that Section 702c confers immunity from claims
arising from alleged negligence in the operation of recreational
facilities included within federal flood control projects.  See Dawson
v. United States, 894 F.2d 70 (3d Cir. 1990);  Dewitt Bank & Trust Co.
v. United States, 878 F.2d 246 (8th Cir. 1989), cert. denied, 110 S.
Ct. 1318 (1990);  Zavadil v. United States, 908 F.2d 334 (8th Cir.
1990);  McCarthy v. United States, supra.  /4/ Similarly, in Mocklin
v. Orleans Levee Dist., 877 F.2d 427 (1989), the Fifth Circuit held
that Section 702c barred a claim against the government arising out of
a drowning in a channel that had been dredged to facilitate the
movement of equipment needed for the construction of flood control
levees.

   Like the decision in this case, each of those decisions concluded
that the waters in which the injuries occurred were "flood waters" for
purposes of Section 702c;  each also held that the statute, as
construed in James, conferred immunity on the government
notwithstanding allegations that injuries resulted from negligence
wholly unrelated to flood control.  Pet. App. A4, A6-A8;  Dawson v.
United States, 894 F.2d at 73-74;  Mocklin v. Orleans Levee Dist., 877
F.2d at 428-430 & n.6;  Zavadil v. United States, 908 F.2d at 335-336;
 Dewitt Bank & Trust Co. v. United States, 878 F.2d at 247;  McCarthy
v. United States, 850 F.2d at 561-563.  In two of these cases,
McCarthy and Dewitt, this Court denied petitions seeking further
review of the same question as that advanced by petitioner here.

   Contrary to petitioner's contention, these cases cannot be
subdivided between decisions adopting a "mechanical" interpretation of
Section 702c and those taking a "functional" approach.  See Pet. 7, 10
& n.4.  Like the court of appeals in the instant case, the Third,
Fifth, Eighth, and Ninth Circuits have noted that flood control
operations contributed to the hazards underlying the plaintiffs'
injuries.  /5/ There is no significant divergence among these courts'
interpretations of Section 702c, and the Seventh Circuit's decision is
not "novel" (Pet. 10).

   As petitioner notes, the Tenth Circuit has held that immunity was
unavailable in a case arising from recreational activities on a flood
control lake.  Boyd v. United States, 881 F.2d 895 (1989).  In Boyd, a
swimmer snorkeling in a flood control lake was struck and killed by a
power boat;  his complaint alleged that the government was negligent
in failing to warn swimmers that boating was permitted in the area in
which the accident occurred and in failing to zone the lake to
prohibit boating in that area.  The court of appeals concluded, inter
alia, that Section 702c did not bar the suit.  The court criticized
the standard applied by the Ninth Circuit in McCarthy -- a standard
the Boyd Court characterized as creating a "'but for' connection
between flood control activity and damages occurring at a flood
control project." Id. at 900.  That standard was not consistent, the
Tenth Circuit stated, with its view that the concern underlying
Section 702c was "to shield the government from liability associated
with flood control operations * * * not liability associated with
operating a recreational facility." Ibid.  At the same time, the
court's holding in Boyd was very narrow (ibid.):

      Without attempting to delineate for every conceivable situation
      the necessary link between flood control activities and injuries
      sustained at a flood control project before Section 702c
      immunity applies, in the present case we hold that the requisite
      nexus has not been established.

   Any conflict between Boyd and decisions in other circuits does not
call for this Court's review.  The holding in Boyd was limited
expressly to the facts of that case.  As the court of appeals
recognized in the instant case, Boyd's facts are distinguishable from
those of the other cases cited in the petition, since the injury
involved in Boyd was not attributable to management of waters in a
flood control lake.  See Pet. App. A6.  Thus, it is by no means clear
that petitioner would prevail on the facts of this case in the Tenth
Circuit.  Moreover, since Boyd was decided, there have been a number
of decisions in other circuits that have explained why cases like this
one involve "liability associated with flood control operations" (881
F.2d at 900).  As these courts have recognized, the government's
ongoing monitoring and regulation of water levels in flood control
lakes is a "substantial factor" in causing injuries in those lakes.
See note 5, supra.  If called upon to apply Section 702c in the
future, the Tenth Circuit is unlikely to disregard the emerging
consensus reflected in those cases.  The court could well conclude
that this "substantial factor" referred to by these courts provides
the undefined "link" or "nexus" (881 F.2d at 900) required by Boyd --
or could decide to elaborate on Boyd's relatively brief discussion of
Section 702c so as to lay to rest any potential conflict.

   The Fourth Circuit's decision in Hayes v. United States, supra,
upon which petitioner also relies to support its claim of
inter-circuit conflict (Pet. 7), was decided before this Court's
decision in James.  Since James, the Fourth Circuit has not had
occasion to consider the significance of that decision or to apply
Section 702c.  Under these circumstances, there is no need for this
Court to address any potential conflict between Hayes and decisions of
other courts of appeals.

   3. Petitioner asserts (Pet. 15-17) that the court of appeals'
decision is inconsistent with the purposes of Section 702c and the
subsequently enacted Federal Tort Claims Act.  However, as petitioner
acknowledges, the purpose of Section 702c was "to ensure beyond doubt
that sovereign immunity would protect the government from 'any'
liability associated with flood control." United States v. James, 478
U.S. at 608.  And, as this Court observed in rejecting a similar
appeal in James, "If that provision is to be changed, it should be by
Congress and not by this Court." Id. at 612.

   Since James, all of the courts that have considered the question
(with the possible exception of Boyd) have rejected petitioner's
proposed resolution of the issues presented by this case as unworkable
and inconsistent with this Court's interpretation of the statute.
Under these circumstances, we submit that the question of Section
702c's applicability to accidents of the type at issue here does not
warrant this Court's attention.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   ROBERT S. GREENSPAN

   IRENE M. SOLET

      Attorneys

   SEPTEMBER 1990

   /1/ The project was authorized by Congress in the Flood Control Act
of 1958, Pub. L. No. 85-500, Tit. II, Section 203, 72 Stat. 310.

   /2/ Hayes was a two-page decision reversing the dismissal of a
complaint that alleged that the plaintiff's land had been eroded by
releases of water from a dual-purpose dam.  Distinguishing between
"flooding which allegedly occurred because of the government's
anti-flooding activity" and "flooding caused by a federal project
unrelated to flood control," Hayes remanded for further proceedings
because it was "not inconceivable that all or some of the releases
were solely for the purpose of promoting recreational use of the
impounded waters and not in the least in aid of the operation of the
dam as a flood control facility." 585 F.2d at 702.  The Fourth Circuit
has had no occasion since James to elaborate upon this approach or to
apply it beyond the facts of Hayes.

   /3/ The court of appeals noted that, as petitioner's counsel
conceded during oral argument, there was no dispute that the water
level of Lake Shelbyville is constantly changing.  Pet. App. A8.
There is thus no merit to petitioner's suggestion that the court
applied an incorrect standard in affirming the dismissal of
petitioner's complaint (see Pet. 6 n.3);  a remand on that basis would
serve no purpose;  and, in any event, the point does not warrant this
Court's review.

   We do not concede that the Flood Control Act applies only when
flood control projects have increased the risk of the injury
complained of.  The statute can reasonably be construed to provide the
United States with broader protection from the massive liability that
could accompany taking charge of waters within flood control projects.
 But the fact that flood control operations did increase the risk of
the injury sued upon here makes this case an inappropriate vehicle for
determining the outer boundary of the immunity conferred by the Act.

   /4/ In McCarthy, the plaintiff was seriously injured when he dove
into shallow water at a recreational area on a lake created as part of
a flood control project.  The Ninth Circuit affirmed the dismissal of
the complaint.  In Dewitt, the Eighth Circuit reversed an award of
damages against the government for injuries to an individual who dove
into shallow water at a beach on a flood control lake.  Similarly, in
Dawson, the Third Circuit affirmed the dismissal of two actions
arising from drownings at a swimming area in a flood control lake.  In
Zavadil, the plaintiff was injured when he struck a submerged concrete
boat ramp while diving from a dock located on a flood control lake.

   /5/ See Dawson v. United States, 894 F.2d at 74 (noting that "daily
variation in the water depth * * * was in part due to releases by the
Corps for flood control purposes";  thus, "'governmental control of
flood waters was a substantial factor' in causing" the accident);
Mocklin v. Orleans Levee Dist., 877 F.2d at 428-430 & n.6 (noting that
it was "clear * * * that the water in the flotation channel causally
did contribute to the (accident)";  a channel dredged to facilitate
construction of the flood control project at issue "created a
significant dropoff in the lake");  Zavadil v. United States, 908 F.2d
at 336 & n.4 ("at the time of the accident the water level was being
monitored for flood control and navigational purposes" and
"governmental control of these waters was a substantial factor in
causing (the plaintiffs') injuries");  DeWitt Bank & Trust Co. v.
United States, 878 F.2d at 247 ("In operating the project for flood
control and navigation, the Corps maintained the waters at this
shallow level.  Thus, governmental control of flood waters was a
substantial factor in causing (the plaintiff's) injuries.");  McCarthy
v. United States, 850 F.2d at 561 (noting that "(a)lthough
(plaintiff's) injury did not result from a perceptibly active
operation of the flood control facility, the record does indicate
ongoing monitoring and discharge of water levels at the Lake,
activities which even formed part of (the plaintiff's) complaint for
negligence").