ELR Citation: ELR 20360
No(s). 01-5031 (Fed. Cir. Nov 27, 2001)

The court reverses the Court of Federal Claims' holding that the Flood Control Act partially repealed the Tucker Act by implication, thereby immunizing the United States from breach-of-contract claims for damages arising from or related to flood control projects. In 1961, the United States and the state of California entered into an agreement for a joint water use project and agreed that each would pay a portion of the operation, maintenance, and replacement costs. Over the course of the agreement, the United States and California made payments totaling over $7 million due to damages from floodwaters. However, after a large storm in 1995 caused flooding and property damage, the United States denied California's reimbursement claims, alleging that it was immune under the Flood Control Act. The court first holds that the Flood Control Act did not impliedly partially repeal the Tucker Act. The Tucker Act grants the Court of Federal Claims jurisdiction over a variety of claims against the United States, including contract and damages, thereby constituting a waiver of sovereign immunity for those claims. The Flood Control Act prohibits liability of any kind from attaching to the United States for any damage from or by flood or floodwaters.  The two statutes, therefore, are directly at odds with one another. That contradiction could be reconciled if the later-occurring statute, the Flood Control Act, partially repealed the earlier-occurring statute, the Tucker Act, by implication. The waiver of immunity in the Tucker Act, however, arises not from the Act itself, but from some substantive right guaranteed by or granted in the underlying document upon which jurisdiction is based. Additionally, the Tucker Act, which predates the Flood Control Act by 40 years, is not mentioned in the Flood Control Act and does not appear in the legislative history to have been discussed at all. The court also holds that the Court of Federal Claims erred in holding that the United States was without authority to contract to indemnify California for flood claim payments. Congress passed a law authorizing the Secretary of the Interior to enter into an agreement with California providing for coordinated operation of the water use project on behalf of the United States. The Secretary, therefore, did not act ultra vires by entering into the 1961 agreement and the United States waived its sovereign immunity. Thus, the case was reversed and remanded for a calculation of damages.

The full text of this decision is available from ELR (14 pp., ELR Order No. L-407).

Counsel for Plaintiff
Gordon B. Burns, Deputy Attorney General
Attorney General's Office
1300 I St., Ste. 1740, Sacramento CA 94814
(916) 324-5437

Counsel for Defendant
Gregory R. Firehock
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000