Schenker et al v. United States of America

Filing 18

ORDER granting 7 Defendant's motion to dismiss for lack of jurisdiction. Signed on 12/6/11 by District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
WAYNE SCHENKER and
LOIS SCHENKER,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

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No. 4:11-CV-00060-DGK

ORDER DISMISSING CASE FOR LACK OF SUBJECT MATTER JURISDICTION
This lawsuit arises from allegations that the Army Corps of Engineers was negligent in
constructing the Truman Dam and Reservoir project. Plaintiffs contend that as a result their
residence was damaged when the reservoir flooded in 1986 and 2007, and that their home will be
damaged in the future by floods.
Pending before the Court is the United States’ motion to dismiss for lack of subject
matter jurisdiction (doc. 7). Because Plaintiffs’ claims are barred by the absolute immunity
granted the federal government under the Flood Control Act of 1928, 33 U.S.C. § 702c, the
motion is GRANTED.
There are two types of challenges to subject matter jurisdiction under Rule 12(b)(1),
“facial” attacks and “factual” attacks. Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir.
1990). A facial attack challenges subject matter jurisdiction based on the bare allegations in the
complaint. In a factual attack the court considers matters extrinsic to the pleadings to determine
if it has subject matter jurisdiction. In a facial attack the court assumes the allegations in the
complaint are true, whereas in a factual attack the court does not. The pending motion is a facial

attack because Defendant argues that even if the Complaint’s allegations are true, the Court lacks
subject matter jurisdiction.
To summarize the Complaint, Plaintiffs allege that “[i]n conjunction with the design and
construction of the dam for the Harry S. Truman Reservoir, the Defendant’s Army Corps of
Engineers designed and oversaw the construction of a bridge” which “was negligently designed
and constructed in that the orifice was not of sufficient size to allow the waters of the Osage
River in a 50 years flood scenario to pass under the bridge.” Compl. ¶¶ 5, 7. As a result, flood
waters enter Plaintiffs’ residence during a 50-year flood event. Compl. ¶ 14.
As a sovereign, the United States is immune from suit unless it waives its traditional
immunity and consents to be sued. United States v. Dalm, 494 U.S. 596, 608 (1990). While the
Federal Tort Claims Act (“FTCA”) acts as a general waiver of sovereign immunity by the federal
government with respect to tort claims, there are limitations and conditions on this waiver which
“‘must be strictly observed, and exceptions thereto are not to be implied.’” Lehman v. Nakshian,
453 U.S. 156, 161 (1981) (quoting Soriano v. United States, 352 U.S. 270, 276 (1957)). The
“party bringing a cause of action against the federal government bears the burden of
demonstrating an unequivocal waiver of immunity.” Bacon v. United States, 661 F. Supp. 8, 10
(E.D. Mo. 1986).
The United States argues that Plaintiffs’ claims are barred by the Flood Control Act of
1928, which provides 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 place.” 33 U.S.C. § 702c (emphasis
added). This immunity is interpreted broadly, Callaway v. United States, 568 F.2d 684, 686-87
(10th Cir. 1978), to bar “recovery where the Federal Government would otherwise be liable
under the Federal Tort Claims Act.” United States v. James, 478 U.S. 597, 599 (1986). In order

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to invoke the protection of the Flood Control Act the government must establish (1) that the
flood or flood waters that damaged the plaintiff were connected to a federally funded flood
control project; and (2) that the damage was caused by such flood or flood waters. See Portis v.
Folk Constr. Co., 694 F.2d 520, 522-23 (8th Cir. 1982). In this case, Plaintiffs allege that as part
of a federal flood control project, the Truman Dam and Reservoir project, the Amy Corps of
Engineers negligently designed and constructed a bridge, which, during a flood, caused flood
waters to reach Plaintiffs’ property and damage it. This establishes that the United States is
entitled to immunity.
In response, Plaintiffs state that they “do not believe that the aspects of the Federal Flood
Control Act of 1928 are applicable,” but do not explain why the law is not applicable, nor do
they cite any authority for this proposition. Consequently, Plaintiffs have failed to unequivocally
demonstrate a waiver of immunity.
The language of § 702c is plain and unambiguous, as is its application here.
Accordingly, the United States’ motion to dismiss for lack of subject matter jurisdiction (doc. 7)
is GRANTED.
IT IS SO ORDERED.
Date: December 6, 2011

/s/ Greg Kays______________________
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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