NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

BOARD OF SUPERVISORS OF ISSAQUENA 

COUNTY, MISSISSIPPI,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________

2022-2026

______________________

Appeal from the United States Court of Federal Claims 

in No. 1:21-cv-01415-LAS, Senior Judge Loren A. Smith.

______________________

Decided: August 4, 2023

______________________

PATRICK WAYNE PENDLEY, Pendley, Baudin & Coffin, 

Plaquemine, LA, argued for plaintiff-appellant. Also represented by JOHN DEAKLE, RONALD JOHNSON, IV, DeakleJohnson Law Firm, Hattiesburg, MS.

 BRIAN C. TOTH, Appellate Section, Environment and 

Natural Resources Division, United States Department of 

Justice, Washington, DC, argued for defendant-appellee. 

Also represented by TODD KIM.

______________________

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2 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US

Before DYK, BRYSON, and STARK, Circuit Judges.

DYK, Circuit Judge.

The Board of Supervisors of Issaquena County, Mississippi (the “Board”) sued the United States in the Court of 

Federal Claims (“Claims Court”), alleging that actions or 

inactions by the United States led to flooding in 2018 and 

2019 that damaged the Board’s property and destroyed private property and reduced economic activity, thereby depriving the county of tax revenue. The Board sought 

compensation for the damage under the Takings Clause of 

the Fifth Amendment of the U.S. Constitution. The Claims

Court granted the government’s motion to dismiss, holding 

that the Board’s complaint failed to state a takings claim. 

Although we hold that the Board’s complaint failed to state 

a claim, we will exercise our discretion to permit the Board 

to seek leave from the Claims Court to amend its complaint. We therefore affirm in part and vacate and remand

in part. 

BACKGROUND

“At this stage in the proceedings, we accept the 

[Board’s] well-pleaded factual allegations as true,” and 

“may also look to matters incorporated by reference or integral to the claim, items subject to judicial notice, and 

matters of public record.” A & D Auto Sales, Inc. v. United 

States, 748 F.3d 1142, 1147 (Fed. Cir. 2014) (internal quotation marks, modifications, and citations omitted). 

I

Issaquena County lies on the southern edge of the Mississippi Delta, an alluvial valley stretching approximately 

from the Tennessee-Mississippi border in the north to 

Vicksburg, Mississippi in the south. The Mississippi and 

Yazoo rivers converge on the east bank of the Mississippi 

just north of Vicksburg to form a Y shape, with the Mississippi running from the northwest and the Yazoo running 

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BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US 3

from the northeast. The county is located in between those 

rivers. 

The Delta has often been flooded by its surrounding 

rivers, at times compounded by storms resulting from its 

proximity to the Gulf of Mexico. See United States v. Sponenbarger, 308 U.S. 256, 260 (1939) (“[O]ccupation of the 

alluvial valley of the Mississippi has always been subject 

to this constant hazard [of flooding].”). When a river overflows its banks, the result is known as headwater flooding. 

Backwater flooding, by contrast, happens when a river, 

such as the Mississippi, rises more than a tributary such 

as the Yazoo, causing the tributary’s water to surge until it 

matches the height of the dominant river. There is no issue 

here of damage from Mississippi headwater flooding. Instead, the Board claims damage that allegedly resulted

from the government’s construction of gates and levees to

prevent backwater flooding, which had the consequence of 

interfering with the natural drainage of floodwater created 

by excessive rainfall. 

In 1927, the Delta was struck by the Great Flood, 

which displaced more than 600,000 people, inundated 16 

million acres of land, and inspired the Delta Blues classic 

“When the Levee Breaks.” During the Great Flood, the 

Mississippi was 80 miles wide at Vicksburg, just south of 

Issaquena County. 

Congress responded in 1928 by authorizing the Army 

Corps of Engineers (the “Corps”) to carry out a “comprehensive ten-year program for the entire [Mississippi] valley, 

embodying a general bank protection scheme, channel stabilization and river regulation, all involving vast expenditures of public funds.” Sponenbarger, 308 U.S. at 262; see

also Flood Control Act of 1928, Pub. L. No. 70-391, ch. 569, 

45 Stat. 534, 535, 537; First Amended Compl. ¶ 17, Board 

of Supervisors of Issaquena County v. United States, 160 

Fed. Cl. 300 (2022), ECF No. 9 (“Amended Complaint”).

The program resulted in the construction of additional Mississippi River levees.

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4 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US

The government recognized that the improved Mississippi levees, by retaining more water in the river, led to 

more flood risk in the area between the Mississippi and Yazoo rivers known as the Yazoo Backwater Area (“Area”).

See M. C. Tyler et al., Flood Control on the Lower Miss. 

River, H.R. Doc. No. 77-359, at 37 (1st Sess. 1941). In 1936 

Congress approved a plan to construct an additional channel, known as the Eudora Floodway, to direct overflow from 

the Mississippi to, ultimately, the Gulf of Mexico. See id. 

at 11, 30; 33 U.S.C. § 702a-2. In 1941, however, Congress 

“abandoned” the floodway and instead funded the creation 

of a new levee system to protect the Area from backwater 

flooding. See Flood Control Act of 1941, Pub. L. No. 77-228, 

§ 3, 55 Stat. 638, 642–44 (codified as amended at 33 U.S.C. 

§§ 702a–702m).1 The resulting Yazoo Backwater Project 

(“Backwater Project”) was completed in its current form in 

1978. 

The mainline levee system built up after the Great 

Flood runs parallel to the Mississippi. The Backwater Project extended the levees from the confluence of the Yazoo 

and Mississippi rivers for about 30 miles to the northeast, 

running parallel to the Yazoo, where another set of levees 

picks up. 

1 See also U.S. Army Corps of Eng’rs, 2020 Final 

Supplement No. 2 to the 2007 Final Supplement No. 1 to

the 1982 Yazoo Area Pump Project Final Environmental 

Impact Statement, Appendix G (“2020 EIS Appx. G”),

¶¶ 2–3, https://www.mvk.usace.army.mil/Missions/Programs-and-Project-Management/Project-Management/Yazoo-Backwater-Project/Yazoo-Backwater-Report/FileId/30

3749/.

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BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US 5

II

In this case, the Board alleged in its complaint that the 

government’s “design, construction, maintenance and subsequent operation” of the Backwater Project led to flooding 

of the Board’s land, which constituted a taking under the 

Fifth Amendment. Amended Compl. ¶ 6. According to the 

Board, the Backwater Project uses levees and floodgates to 

protect the Area from backwater flooding. See id. ¶¶ 19, 

22. Before the Backwater Project was built, the Yazoo 

River played an important role in draining rainfall from 

the Area. Id. ¶ 18. “The levees constructed as part of the 

Yazoo Backwater Project altered and cut off this natural 

drainage in order to protect the area from flooding during 

high flood stages along the Mississippi and Yazoo Rivers 

and the resulting backwater inundation that occurred.” Id. 

To prevent rainfall from accumulating behind the levees, 

the Backwater Project uses the floodgates at the Steele 

Bayou Control Structure to allow water to drain out of the 

Area. See id. ¶¶ 19, 22. When the water is high on the 

Mississippi and Yazoo rivers, however, the floodgates 

“must remain closed to prevent backwater flooding,” and 

“any additional precipitation that falls within the 4,093 

square mile drainage area becomes trapped behind the Yazoo Backwater levee system and unable to drain.” Id. ¶ 19.

So if there is both backwater flooding from the Mississippi and extensive rainfall inside the Area between the 

mainline and Backwater Project levees, “the Yazoo Basin

essentially becomes a bathtub with no effective drainage 

mechanism,” and there is nowhere for the water in the 

Area to go except onto dry land. Id. ¶ 20. To address that 

possibility, after building the levees and floodgates the 

Corps planned to construct a pump system to remove excess water from the Area. See id. ¶ 19. The Corps never 

built the pumps. See id.

From late 2018 through the summer of 2019, the Mississippi flooded and heavy rainfall fell in the Area. See id. 

¶¶ 22–23. The Corps kept the Steele Bayou Control 

Case: 22-2026 Document: 32 Page: 5 Filed: 08/04/2023
6 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US

Structure gates closed for months to keep out the floodwaters from the Mississippi. See id. ¶ 22. The rainwater was 

trapped behind the levees, with “no outlet through which 

to drain into the Mississippi River, Yazoo River, or anywhere else,” and inundated approximately 550,000 acres in 

the Area by May 2019. Id. ¶¶ 22–23. “Approximately 687 

residential homes and hundreds of additional structures 

were damaged or destroyed by the floodwaters,” and 

“roads, bridges, culverts and other governmental infrastructure within Issaquena County” were flooded. Id. 

¶¶ 23–24. The flooding also damaged “roadbeds, ditches, 

levees, and other drainage structures” in the county, forced 

the local government to take emergency actions to keep its

transportation infrastructure working, and resulted “in a 

severe reduction of the [county’s] tax revenue.” Id. ¶ 24. 

III

On June 1, 2021, the Board sued the United States in 

the Claims Court, asserting that the “affirmative acts or 

inactions of the U.S. Army Corps of Engineers . . . resulted 

in an unlawful taking of [the Board’s] lands under the Fifth 

Amendment of the United States Constitution.” Original 

Complaint ¶ 3, Board of Supervisors of Issaquena County, 

160 Fed. Cl. 300, ECF No. 1. The Board amended its complaint in October 2021 to add more detail about the damage 

it alleged it had suffered as a result of the taking. See 

Amended Compl. ¶¶ 25–26. According to the Board, it 

amended its complaint in part because the government 

wanted the Board to list all the roads, culverts, and bridges 

that were allegedly destroyed by the flooding. Oral Arg. at 

34:07–28. 

The United States moved to dismiss the case for failure 

to state a claim, and the Claims Court granted the motion. 

First, the Claims Court found that the Board alleged that 

government inaction—failure to install the pumps and 

build the Eudora Floodway—caused flooding in the Area. 

Relying on the Supreme Court’s decision in Sponenbarger

and our decision in St. Bernard Parish Gov’t v. United 

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BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US 7

States, 887 F.3d 1354 (Fed. Cir. 2018), the court held that

government inaction cannot be the basis of a takings claim. 

See J.A. 4–6. Second, the Claims Court found that the 

Board alleged that government action—building the Backwater Project and shutting the Steele Bayou Control Structure gates—caused flooding. See J.A. 6–7. But because the 

Board had not alleged that the government caused worse

flooding than that which would have occurred in the absence of government action designed to prevent flooding, 

the Board had not adequately pled a takings claim. See id.

The Board appeals. We have jurisdiction under 28 

U.S.C. § 1295(a)(3).

DISCUSSION

I

We review dismissals by the Claims Court for failure 

to state a claim de novo and “must presume that the facts 

are as alleged in the complaint, and make all reasonable 

inferences in favor of the plaintiff.” Cary v. United States, 

552 F.3d 1373, 1376 (Fed. Cir. 2009). To survive a motion 

to dismiss, “the complaint must contain ‘sufficient factual 

matter, accepted as true, to state a claim to relief that is 

plausible on its face.’” A & D Auto Sales, 748 F.3d at 1157 

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (secondary quotation marks and citation omitted)).

The Takings Clause guarantees that the government 

will not take private property “for public use, without just 

compensation.” U.S. Const. amend. V, cl. 4. The Supreme 

Court has long held that “government-induced flooding can 

constitute a taking.” Arkansas Game & Fish Comm’n v. 

United States, 568 U.S. 23, 32 (2012) (citing Pumpelly v. 

Green Bay Co., 80 U.S. 166 (1871) and United States v. 

Cress, 243 U.S. 316 (1917)); see also Cedar Point Nursery v. 

Hassid, 141 S. Ct. 2063, 2071 (2021). 

Case: 22-2026 Document: 32 Page: 7 Filed: 08/04/2023
8 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US

II

On appeal, the Board has suggested three theories of 

recovery. The first theory does not state a takings claim, 

and the second theory was not adequately pled. The third 

theory is also not adequately pled in its present form, but 

we conclude a potential amendment might clarify the complaint so that it adequately states a claim. 

First, the Board alleged that the flooding at issue was 

caused by the government’s failure to build pumps in the 

Backwater Project, or to construct an alternative drainage 

system. See, e.g., Amended Compl. ¶¶ 19, 21, 26. Those 

allegations cannot state takings claims. Throughout its 

amended complaint the Board referred to both the government’s “affirmative acts or inactions” as the source of the 

alleged taking, see id. ¶¶ 3, 6, 26, and asserted that 

“[b]ecause the pumps were never completed, an estimated 

687 homes were flooded during the Yazoo Backwater Flood 

of 2019,” id. ¶ 21. But as we have held, “[t]akings liability 

must be premised on affirmative government acts.” St. 

Bernard Parish, 887 F.3d at 1362; see also Oral Arg. at 

11:59–12:26 (Board counsel agreeing with the court that 

“[f]ailure to put the pumps in doesn’t state a takings 

claim”). The government’s failure to install pumps or to 

construct an additional floodway cannot result in takings 

liability. 

Second, the Board suggests on appeal that the original

government projects to shore up the Mississippi levee system after the Great Flood—built before the Backwater Project—were “expected [to] increase flood heights” on the 

Mississippi, requiring “additional flood protection for the 

Yazoo Backwater Area.” Appellant’s Br. 5 (internal quotation marks and citation omitted). The Board in its complaint made no claim based on a theory involving the flood 

control measures on the Mississippi undertaken almost a 

century ago. Indeed, the Board’s claim for relief rested entirely on the Corps’ actions vis-à-vis the Backwater Project’s construction and operation, rather than any earlier 

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BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US 9

government actions. See Amended Compl. ¶¶ 29–30; see 

also Appellant’s Br. 3 (summarizing the Board’s allegations

as relating solely to the Backwater Project). The only 

claims the Board even attempted to state involved government actions beginning no earlier than 1941.

Third, the Board alleged that the Corps’ construction 

and operation of the Backwater Project led to flood damage. 

See Amended Compl. ¶¶ 6, 19–23, 27, 29–30. But the 

Board in its complaint never plausibly explained how the 

Backwater Project, which indisputably protects the Area 

from backwater flooding, see id. ¶ 18, led to worse flooding 

than would have occurred in its absence. “To survive a motion to dismiss, a complaint must contain sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must therefore present “factual content that allows the 

court to draw the reasonable inference that the defendant 

is liable for the misconduct alleged.” Id.; see also Bot M8 

LLC v. Sony Corp. of Am., 4 F.4th 1342, 1352 (Fed. Cir. 

2021). 

As we held in St. Bernard Parish, the crucial causality 

question in cases like this is whether “the flood damage 

that actually occurred” was worse than “the flood damage 

that would have occurred if there had been no government 

action at all.” St. Bernard Parish, 887 F.3d at 1363. That 

analysis “must consider the impact of the entirety of government actions that address the relevant risk” by assessing whether the plaintiff’s damage was greater than it 

would have been if the government had not acted to “prevent[] the same type of injury on the same property where 

the damage occurred.” Id. at 1364, 1366.2 The Board’s 

2 See also Arkansas Game & Fish Comm’n v. United 

States, 736 F.3d 1364, 1372 n.2 (Fed. Cir. 2013) (holding 

that “the proper comparison” for causation analysis was 

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10 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US

allegations here do not currently allow us to draw the reasonable inference that the United States is liable for such 

but-for damage. 

As discussed above, the Backwater Project is a series of 

levees and floodgates that shield the Area from backwater 

flooding from the Yazoo river. As shown in the Corps-produced map below, of which we take judicial notice, the 

mainline levees generally guard the Area against flooding 

from the Mississippi river to the west and the Backwater 

Project generally blocks flooding from the south and east.3 

The Corps allows water to drain out of the leveed Area by 

opening the Steele Bayou Control Structure gates when 

water on the landside is at a minimum height and higher 

than the water on the riverside. When water is higher 

“between the flooding that occurred prior to the construction of [the government dam that plaintiff argued led to 

flooding] and the flooding that occurred during [the time of 

the asserted taking]”); Sponenbarger, 308 U.S. at 266–67 

(“[I]f governmental activities inflict slight damage upon 

land in one respect and actually confer great benefits when 

measured in the whole, to compensate the landowner further would be to grant him a special bounty.”). 3 The map is reproduced, as annotated by the court 

to circle the location of the Steele Bayou Control Structure, 

from U.S. Army Corps of Engineers, Final Supp. No. 1 to 

the 1982 Yazoo Area Pump Project Final Environmental 

Impact Statement, Appx. 4 (2007), 

https://www.mvk.usace.army.mil/Missions/Programs-andProject-Management/Project-Management/Yazoo-Backwater-Project/Yazoo-Backwater-Report/FileId/259737/, at 

plate 4-1. Levees are marked on the map with dark lines. 

We may take judicial notice of it because it is “accurately 

and readily [discernible] from sources whose accuracy cannot reasonably be questioned.” Apple Inc. v. Qualcomm 

Inc., 992 F.3d 1378, 1384 (Fed. Cir. 2021) (quoting Fed. R. 

Evid. 201(b)) (alteration in original). 

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BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US 11

outside than inside the levee, “the flood gates at the Steele

Bayou [C]ontrol [S]tructure must remain closed to prevent 

backwater flooding.” Amended Compl. ¶ 19. 

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12 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US

The Board does not appear to dispute that the Backwater Project protects Issaquena County from backwater 

flooding. See Amended Compl. ¶¶ 18–19. But it nevertheless avers that the Backwater Project led to flooding because it prevented rainwater from draining out of the Area

when the gates were closed. See Amended Compl. ¶¶ 20–

23, 27. The Amended Complaint on its face does not plausibly allege any flooding of the Board’s land greater than 

would have taken place if the Backwater Project had not 

been built. 

To start, as the Board effectively admits, if the Backwater Project had not been there, the Area would almost 

certainly have been struck with backwater flooding in 2018 

and 2019. At that time, “the Mississippi River experienced 

the longest extended period of near record-high stages 

since the Great Flood of 1927,” and “the gates at the Steele 

Bayou [C]ontrol [S]tructure were forced to remain closed 

for months to prevent Mississippi River water from entering and flooding the Yazoo Backwater Area.” Id. ¶ 22. The 

complaint thus appears to concede that absent the Backwater Project, backwater flooding would have entered the 

Area. The Board has never alleged that the Backwater 

Project made Mississippi river flooding worse.

Nor does the complaint in its present form plausibly 

explain how the construction of the Backwater Project 

could have led to worse rainwater flooding than would have 

occurred in its absence. Though the Board alleges that the 

Backwater Project prevents the Area from naturally draining into the Mississippi and Yazoo rivers, id. ¶ 18, it suggests that this is only a problem “when high flood stages

along the Mississippi and Yazoo Rivers coincide with excessive rainfall events within the Yazoo Basin,” id. ¶ 20. 

But when the Mississippi and Yazoo rivers are high enough 

to force the gates closed, no rainwater could drain out of 

the Area with or without the Backwater Project. See id. 

¶¶ 19, 22. So the current complaint does not plausibly explain how the Project’s existence in that scenario could 

worsen rainwater flooding.

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BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US 13

For similar reasons, the Board has not explained how 

the Corps’ operation of the Backwater Project worsened 

flooding. The complaint focuses on the government’s decision to keep the Steele Bayou Control Structure gates 

closed when the Mississippi was in flood. See id. ¶¶ 22, 27. 

But as the Board concedes, opening the gates during that 

time would only have “exacerbated” the flooding. See Oral 

Arg. 34:44–35:03 (Board counsel conceding that the Corps 

could not “open the gate[s] in 2019 . . . when the . . . riverside was higher than the landside . . . because that would 

have exacerbated [the flooding in the Area]”); see also 

Amended Compl. ¶ 22. 

For the first time on appeal, the Board attempts to remedy this gap, arguing that the government is systematically increasing flood risk by preventing the Backwater

Area from draining when the Mississippi is not in flood. 

With sufficient factual content, such a theory might present a plausible allegation of but-for causation as to the 

flooding at issue. But there is no specific allegation in the

Board’s complaint that the Backwater Project made things 

worse by blocking water from draining during non-flood periods. See id. ¶¶ 22, 27 (blaming rainwater flooding largely 

on the government’s decision to close the floodgates, not the 

Project’s general retention of water in the Area).

The Board also seeks to distinguish St. Bernard Parish 

on the grounds that that case was decided after trial, while 

here the Claims Court dismissed the case on the pleadings. 

But as we have held in the regulatory takings context, takings plaintiffs must plausibly plead but-for causation to 

survive a motion to dismiss. In A & D Auto Sales, we explained that because “there can be no regulatory taking 

without a showing of but-for decline in value, a takings 

plaintiff must . . . allege sufficient facts in its complaint to 

show what use or value its property would have had.” 748 

F.3d at 1157. Likewise, there can be no physical takings 

liability without a showing of “what would have occurred if 

the government had not acted,” St. Bernard Parish, 887 

F.3d at 1362 (internal quotation marks and citation 

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14 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US

omitted). A takings plaintiff, whether alleging a physical 

or a regulatory taking, must allege sufficient facts in its 

complaint to show the value of its property but for the government’s actions. See A & D Auto Sales, 748 F.3d at 1157; 

see also Associated Gen. Contractors of California, Inc. v. 

California State Council of Carpenters, 459 U.S. 519, 526 

(1983) (“It is not . . . proper to assume that the [plaintiff] 

can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been 

alleged.”) (quoted with approval in Twombly, 550 U.S. at

563 n.8). 

In the alternative, the Board argues that its pleading 

meets the requirements of St. Bernard Parish. We are not 

persuaded. For example, the Board averred that once the 

Backwater Project was in place “without the pumps, the 

Yazoo Basin essentially [became] a bathtub with no effective drainage mechanism, and the United States knew or 

should have known this type of [rainwater] flooding event 

was likely to occur.” Id. ¶ 20. The Board further alleged 

that “[r]outing the drainage of the entire Yazoo Basin to 

the Steele Bayou Control Structure, and allowing the floodgate to remain closed, created a massive pool of water for 

which there is no drain.” Id. ¶ 27. To the extent these allegations rest on the government’s failure to install the 

pumps, they fail to state a claim, as previously discussed. 

To the extent that the Board is alleging that the construction of the Backwater Project caused flooding, the complaint fails to explain (or even directly allege) how the 

Project brought about a worse result than would have occurred anyway.

The Board also suggests that even if its Amended Complaint did not adequately allege but-for causation, it has 

explained its theory of but-for causation in its appellate 

brief, relying in part on an engineering report prepared by 

the Corps for administrative purposes unrelated to this litigation. The Board also tells us that by the time it filed its 

Amended Complaint it had retained a hydrological expert 

and a civil engineer. The hydrological expert was prepared 

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BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US 15

to opine that flooding is of a greater depth and duration as 

a consequence of the government’s actions. See Appellant’s 

Br. 22–23. These expert reports were not submitted in the 

Claims Court, and are not part of the record. 

If the Board had articulated in its Amended Complaint 

all that it has argued to us, including its explanation of how 

the Project could have physically exacerbated flooding in 

the Area, that might have been sufficient to allege but-for 

causation. See, e.g., Appellant’s Br. 7 (“Plaintiff’s property 

has experienced flooding which is of a greater depth and 

duration than if the government had taken no action at 

all.”), 12 (“[T]he construction and operation of the Yazoo 

Backwater Project . . . has resulted in more severe and prolonged flooding of Plaintiff’s lands.”); 22 (“[E]ven when the 

Steele Bayou gates are fully open, the water is unable to 

evacuate as quickly as it naturally would had the Government taken no action in the Yazoo Backwater Area.”). Incorporation of the Corps’ engineering report into the 

complaint, paired with sufficient explanation of its relevance, may likewise have pushed the Amended Complaint

“across the line from conceivable to plausible.” Iqbal, 556 

U.S. at 680. The report states, for example: “After the significant rainfall in the last week of February [2019], elevations on the Mississippi River at Vicksburg and the Steele 

Bayou riverside started to fall. However, the Steele Bayou 

flood control structure gates remained closed throughout 

March, preventing the Yazoo Backwater to drain.” 2020 

EIS Appx. G ¶ 68. Taking all reasonable inferences in favor of the Board, the report might be read as supporting a 

finding that the government’s construction of the Steele 

Bayou Control Structure and its decision to keep its gates 

closed made the flooding worse than it would have been if 

the government had never even built the Backwater Project. However, the Board did not make any allegations in 

its Amended Complaint based on the report or its retained 

experts. Nor did it include even a single sentence explicitly 

making the express allegation that the flooding experienced following the government’s actions was worse than 

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16 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US

the flooding that preceded it, resulting in the Board’s damage.

In evaluating the sufficiency of a complaint, we generally do not consider new arguments made on appeal that 

are not included in the complaint. See Kimble v. United 

States, 991 F.3d 1238, 1244 (Fed. Cir. 2021). We will not, 

therefore, make an initial determination as to whether a 

complaint that adds some or all of what the Board has identified to us would be sufficient to state a claim. But we are 

persuaded that the Board should have an opportunity to 

pursue such an assessment from the Claims Court in the 

first instance.

Although the complaint failed to state a claim, in our 

discretion we think it appropriate to allow the Board to ask 

the Claims Court to consider an amended complaint that 

would explain how the construction and operation of the 

Backwater Project led to increased flooding compared to a 

world in which the Project had not been built. See Mittleman v. United States, 104 F.3d 410, 417 (D.C. Cir. 1997)

(sua sponte remanding to allow plaintiff to “refine” unclear 

portion of complaint); Garlick v. Quest Diagnostics Inc., 309 

F. App’x 641, 643 (3d Cir. 2009) (“[T]he courts of appeals 

have the inherent authority sua sponte to order a district 

court to grant a plaintiff leave to amend her complaint 

where portions of the pleading are less than pellucid in 

ways that frustrate application of the relevant law.”). Although the Board did not seek leave from the Claims Court 

to file a second amended complaint, and did not expressly 

ask us for a remand for that purpose (until the issue came 

up at oral argument), the Board has now expressed its interest in seeking to amend. See Oral Arg. 7:39–8:40.4

4 Also at oral argument, the government objected to 

granting leave to amend the complaint, citing party 

presentation principles and noting that the Board failed to 

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BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US 17

Ordinarily, we would not grant any relief under such 

circumstances. See Taylor v. United States, 959 F.3d 1081, 

1091 (Fed. Cir. 2020) (finding, in takings case, no abuse of 

discretion where Claims Court did not permit amendment 

that was never requested of it and was first mentioned on 

appeal). The Claims Court did not abuse its discretion 

here, and not even the Board suggests it did. Nonetheless, 

in these unusual circumstances—where the plaintiff’s allegations in its brief on appeal may be sufficient to state a 

claim and where the government does not assert meaningful prejudice—we believe that we can appropriately exercise our discretion to provide the Board an opportunity to 

seek leave to amend one last time and attempt to state a 

plausible takings theory based on government action. See 

A & D Auto Sales, 748 F.3d at 1158–59 (granting leave to 

amend where plaintiffs failed to plead economic loss while 

making clear they intended to establish loss of value); 

Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (noting 

that Federal Rules of Civil Procedure provide for “a liberal 

notice pleading regime, which is intended to ‘focus litigation on the merits of a claim’ rather than on technicalities 

file a motion for leave to amend or ask for such relief in its 

appellate brief. See Oral Arg. at 20:04–21:13. The Board’s 

failure to seek leave appears to have been an unintentional 

forfeiture, not a deliberate waiver, and courts may sua 

sponte consider forfeited positions. See United States v. 

Campbell, 26 F.4th 860, 872 (11th Cir. 2022) (en banc) (citing Wood v. Milyard, 566 U.S. 463, 471 & n.5 (2012)); see 

also United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 

(2020) (“There are no doubt circumstances in which a modest initiating role for a court is appropriate.”).

We think it plain that the Board did intend to plead 

that the government’s actions in constructing and operating the Project caused worse flooding damage than would 

otherwise have occurred. But the Board failed to adequately make these allegations in its original or amended 

complaints.

Case: 22-2026 Document: 32 Page: 17 Filed: 08/04/2023
18 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US

that might keep plaintiffs out of court” (quoting 

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002))); 6 

Charles Alan Wright et al., Federal Practice & Procedure

§ 1473 (3d. ed., April 2023 update) (A “basic polic[y]” of the 

Federal Rules is “that pleadings are not an end in themselves but are only a means to assist in the presentation of 

a case to enable it to be decided on the merits.”).

We do not require that the Claims Court allow such 

amendment. We intend only to require the Claims Court 

to consider whether such amendment should be allowed 

under the typical standards governing amendments under 

Rule 15(a)(2) of the United States Court of Federal Claims. 

We therefore vacate the Claims Court’s dismissal and remand for proceedings consistent with this opinion.5

AFFIRMED IN PART, VACATED AND REMANDED

IN PART

COSTS

No costs. 

5 There is an additional issue presented by the complaint here that we do not reach: whether expected tax revenue is a compensable property interest under the Takings 

Clause. See, e.g., 2 Julius L. Sackman et al., Nichols on 

Eminent Domain § 5.03[6][f][iii] (3d ed. 2023) (“A tax[ing] 

[authority] does not have a compensable interest in a property taken by eminent domain.” (capitalization altered)); 

United States v. 6,321 Acres of Land More or Less In Suffolk Cnty., 479 F.2d 404, 406 (1st Cir. 1973) (recognizing 

the “the general rule making non-compensable [under the 

Takings Clause] an expectation of taxes”); Adams v. United 

States, 391 F.3d 1212, 1225 (Fed. Cir. 2004) (declining “to 

treat a statutory right to be paid money as a legally-recognized property interest”).

Case: 22-2026 Document: 32 Page: 18 Filed: 08/04/2023