`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`TROY ALFORD, KATHY ALFORD, HAROLD
`ANGELO, LUCY BARWICK, THOMAS BEASLEY,
`SANDRA BEASLEY, LARRY BLACKWELL, JOHN
`BRINKMAN, ANGELA BRITT, STEPHANIE COOK,
`JAMES COX, JOHN FEMINELLA, CHARLES
`FRANKLIN, GERALD GELSTON, JACK GOODSON,
`CHRIS HAMMACK, GUS HARRISON, CLAUDE
`HUDSON, SHERMAN HULL, OLLIE HULL,
`LAMARR JOSEPH, WILLIAM KITCHENS, KEN
`KLAUS, KIM KOPPMAN, GLENN LECOMPTE,
`FAYE LITTLE, JAMES LUKE, PATTY MCKAY,
`GEORGE MCMILLIN, WILLIAM MCRIGHT,
`CHARLES MULLINS, BILLY NICHOLS, RAYMOND
`PALMER, SANDRA PALMER, LOU PARKER,
`DONALD REDDEN, DOROTHY REDDEN, ALBERT
`ROBERSON, JOHNNY ROLAND, KEITH RUSHING,
`GEORGE SILLS, HUEL SILLS, RONALD WILSON,
`EAGLE LAKE VIEW, LLC, JOHN AND JANE DOES
`1-100, M. JAMES CHANEY, JR.,
`Plaintiffs-Appellees
`
`v.
`
`UNITED STATES,
`Defendant-Appellant
`______________________
`
`2019-1678
`______________________
`
`
`
`
`Case: 19-1678 Document: 65 Page: 2 Filed: 06/19/2020
`
`2
`
`ALFORD v. UNITED STATES
`
`Appeal from the United States Court of Federal Claims
`in Nos. 1:14-cv-00304-LAS, 1:14-cv-01120-LAS, Senior
`Judge Loren A. Smith.
`______________________
`
`Decided: June 19, 2020
`______________________
`
`SHELDON G. ALSTON, Brunini, Grantham, Grower &
`Hewes, PLLC, Jackson, MS, argued for plaintiffs-appellees
`Troy Alford, Kathy Alford, Harold Angelo, Lucy Barwick,
`Thomas Beasley, Sandra Beasley, Larry Blackwell, John
`Brinkman, Angela Britt, Stephanie Cook, James Cox, John
`Feminella, Charles Franklin, Gerald Gelston, Jack Good-
`son, Chris Hammack, Gus Harrison, Claude Hudson, Sher-
`man Hull, Ollie Hull, Lamarr Joseph, William Kitchens,
`Ken Klaus, Kim Koppman, Glenn Lecompte, Faye Little,
`James Luke, Patty McKay, George McMillin, William
`McRight, Charles Mullins, Billy Nichols, Raymond Palmer,
`Sandra Palmer, Lou Parker, Donald Redden, Dorothy Red-
`den, Albert Roberson, Johnny Roland, Keith Rushing,
`George Sills, Huel Sills, Ronald Wilson, Eagle Lake View,
`LLC, John and Jane Does 1-100. Also represented by
`ROBERT LANE BOBO, ROBERT RICHARD CIRILLI, JR.; SCOTT
`H. ANGSTREICH, JACOB HARTMAN, DANIEL SEVERSON, Kel-
`logg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washing-
`ton, DC.
`
` BARRETT BLAKE TELLER, Teller, Hassell & Hopson,
`LLP, Vicksburg, MS, for plaintiff-appellee M. James
`Chaney, Jr.
`
` JOHN EMAD ARBAB, Environment and Natural Re-
`sources Division, United States Department of Justice,
`Washington, DC, argued for defendant-appellant. Also
`represented by ERIKA KRANZ, JEFFREY B. CLARK, ERIC
`GRANT.
` ______________________
`
`
`
`Case: 19-1678 Document: 65 Page: 3 Filed: 06/19/2020
`
`ALFORD v. UNITED STATES
`
`3
`
`
`Before DYK, SCHALL, and O’MALLEY, Circuit Judges.
`DYK, Circuit Judge.
`The plaintiffs, appellees in this court, own properties
`surrounding Eagle Lake in Mississippi. In 2011, the Army
`Corps of Engineers (“Corps”) raised the water level of Eagle
`Lake to prevent a nearby levee from breaching. The plain-
`tiffs’ properties were damaged as a result of the water level
`increase, but the damages sustained were less than the
`damages to the plaintiffs’ properties that would have re-
`sulted from a levee breach. The plaintiffs sued the govern-
`ment in the United States Court of Federal Claims
`(“Claims Court”). The Claims Court found that the govern-
`ment was liable and awarded the plaintiffs $168,000 in
`compensatory damages. The government appeals. We re-
`verse the Claims Court’s judgment because the relative
`benefits doctrine bars liability.
`BACKGROUND
`Eagle Lake is an oxbow lake near Vicksburg, Missis-
`sippi. The water levels in the lake are controlled by the
`Muddy Bayou Control Structure (“the Control Structure”),
`which is a component of the Corps’ Mississippi River flood
`control program (the “Mississippi River and Tributaries
`Project”). The operation of the Control Structure in normal
`conditions resulted in predictable water levels in Eagle
`Lake. The plaintiffs own various properties that surround
`the lake. The predictable water levels of Eagle Lake al-
`lowed them to build structures such as piers, boat houses,
`and docks on the lakeshore.
`In 2010, the Corps determined that the presence of
`“sand boils”—voids in the sand that form due to pressur-
`ized or fast-flowing water migrating through the land-fac-
`ing side of a levee—threatened the stability of the nearby
`Mississippi River Mainline Levee, a component of the same
`flood-control program as the Control Structure.
`
`
`
`Case: 19-1678 Document: 65 Page: 4 Filed: 06/19/2020
`
`4
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`ALFORD v. UNITED STATES
`
`Unusually wet weather in 2011 exacerbated this issue.
`On April 25, 2011, the Corps declared an emergency. The
`Corps determined that the rise in nearby water levels was
`threatening the structural integrity of the levee and “pro-
`jected that the likelihood of breach was over 95%.” J.A. 2.
`The Corps decided to flood Eagle Lake above 90 feet to re-
`duce water pressures along the levee. The government
`knew that the increased water levels would cause damage
`to the plaintiffs’ properties. Id. (“A decision was made to
`raise the [water level of Eagle] Lake, knowing plaintiffs’
`properties would be damaged.”). As a result of that action,
`which the plaintiffs characterize as “buil[ding] a water
`berm,” Appellee’s Br. 38, the levee did not breach. The wa-
`ter level remained elevated for three months. Thereafter,
`the government built a permanent berm to reinforce the
`levee.
`A breach of the levee would have resulted in wide-
`spread flooding affecting “about a million acres and possi-
`bly between four thousand to six thousand homes and
`businesses.” J.A. 2. The flooding would have damaged and
`adversely affected the plaintiffs’ properties. According to
`an expert report submitted by the government, the “hypo-
`thetical water levels” would have resulted in such exten-
`sive damage to the plaintiffs’ properties that, to repair each
`property, “the main residence must be gutted and demol-
`ished back to the original wood stick framing.” J.A. 2846.
`The damage to the plaintiffs’ properties from a levee breach
`would have exceeded the damage caused by raising the
`lake water levels.
`The plaintiffs sued the government in the Claims
`Court, seeking compensation for their damaged properties
`under the theory that the raising of the water level of Eagle
`Lake was a government taking. The government raised
`four defenses. First, it asserted that the plaintiffs were not
`entitled to damages under the relative benefits doctrine.
`The government’s argument was that the plaintiffs were
`better off as a result of the Corps’ actions. If the
`
`
`
`Case: 19-1678 Document: 65 Page: 5 Filed: 06/19/2020
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`ALFORD v. UNITED STATES
`
`5
`
`government had not raised the water level of Eagle Lake,
`the levee would almost certainly have breached, and the
`plaintiffs would have suffered more damages to the same
`properties. Second, the government asserted that plain-
`tiffs failed to prove causation under St. Bernard Parish
`Government v. United States, 887 F.3d 1354, 1362 (Fed.
`Cir. 2018), because the plaintiffs had failed to establish
`what would have happened if the government had not
`acted at all. Third, the government argued that the doc-
`trine of necessity precluded government liability because
`the risk of a breach presented an “imminent danger and an
`actual emergency.” J.A. 72 (quoting TrinCo Inv. Co. v.
`United States, 722 F.3d 1375, 1378 (Fed. Cir. 2013)). Fi-
`nally, the government argued that the plaintiffs failed to
`show that a taking had occurred under the multi-factor test
`for government-induced floods articulated in Arkansas
`Game & Fish Commission v. United States, 568 U.S. 23
`(2012).
`The Claims Court rejected the government’s argu-
`ments, holding that it was “clear in this case that the gov-
`ernment knowingly took action that destroyed some of the
`plaintiffs’ property.” J.A. 2. With respect to the relative
`benefits doctrine, the Claims Court acknowledged that it
`was “certainly true that [the levee and Control Structure]
`benefitted the plaintiffs,” and that “in the hypothetical
`world where the breach [of the levee] occurred, the plain-
`tiffs would have been far worse off.” J.A. 3. Despite these
`facts, the Claims Court held that the “hypothetical situa-
`tion” of a levee breach was irrelevant to the issue of liabil-
`ity. Id. The Claims Court awarded the plaintiffs $168,000
`in damages for the diminution in the fair market value of
`their properties but denied certain plaintiffs’ requests for
`consequential (lost profits and loss of use and enjoyment)
`damages.
`The government appeals, and we have jurisdiction un-
`der 28 U.S.C. § 1295(a)(3).
`
`
`
`Case: 19-1678 Document: 65 Page: 6 Filed: 06/19/2020
`
`6
`
`ALFORD v. UNITED STATES
`
`DISCUSSION
`We review the Claims Court’s legal conclusions de novo
`and its factual findings for clear error. Hendler v. United
`States, 175 F.3d 1374, 1378–79 (Fed. Cir. 1999).
`We need not reach the government’s arguments con-
`cerning causation, the doctrine of necessity, or application
`of the Arkansas Game & Fish standard because we con-
`clude that the relative benefits doctrine forecloses liability.
`That doctrine is closely related to, but distinct from, the
`issue of causation.
`The relative benefits doctrine was first articulated by
`the Supreme Court in United States v. Sponenbarger, 308
`U.S. 256 (1939), which involved the same flood control pro-
`gram at issue in this case. In Sponenbarger, the plaintiff
`alleged that the government’s construction plan for a flood-
`way involved an “intentional, additional, occasional flood-
`ing, [that] damag[ed] and destroy[ed]” the plaintiff’s land.
`Id. at 260. The Court first noted that the 1928 Act that
`authorized the Mississippi River and Tributaries Project
`“accepted the conception . . . that levees alone would not
`protect the [Mississippi] valley from floods.” Id. at 261.
`The construction of floodways was therefore necessary to
`“limit to predetermined points . . . escapes of floodwaters
`from the main channel.” Id. at 262.
`The Court noted that the district court had found that
`the floodway in question had “always been a natural flood-
`way,” id. at 262–63, and held that no taking had occurred
`because “[t]he Government ha[d] not subjected [the plain-
`tiff]’s land to any additional flooding, above what would oc-
`cur if the Government had not acted,” id. at 266. “[T]he
`Fifth Amendment does not make the Government an in-
`surer that the evil of floods be stamped out universally be-
`fore the evil can be attacked at all.” Id. “Enforcement of a
`broad flood control program does not involve a taking
`merely because it will result in an increase in the volume
`or velocity of otherwise inevitably destructive floods, where
`
`
`
`Case: 19-1678 Document: 65 Page: 7 Filed: 06/19/2020
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`ALFORD v. UNITED STATES
`
`7
`
`the program measured in its entirety greatly reduces the
`general flood hazards, and actually is highly beneficial to a
`particular tract of land.” Id.
`Our predecessor court, the Court of Claims, applied the
`rule announced in Sponenbarger in Ark-Mo Farms, Inc. v.
`United States, 530 F.2d 1384 (Ct. Cl. 1976), to reject a
`plaintiff’s takings claim when the evidence showed “that
`the [government] project had in fact decreased peaks, du-
`ration and frequency of floods at the [plaintiff’s property].”
`Id. at 1386. Again in Accardi v. United States, 599 F.2d
`423 (Ct. Cl. 1979), the Court of Claims reiterated this prin-
`ciple, concluding that when the “plaintiffs have wholly
`failed to show that [the government]’s construction or op-
`eration of [an irrigation project] subjected their lands to
`any additional flooding above what would have [otherwise]
`occurred,” “there has been no taking of [the] plaintiffs’
`property.” Id. at 429–30; see also Bartz v. United States,
`633 F.2d 571, 578 (Ct. Cl. 1980).
`In Hendler, our court explained that the relative bene-
`fits doctrine “takes its force from the underlying equitable
`principle that the Government’s obligation is, to the extent
`possible following the Government’s intrusion, to restore
`the landowner to the position he was in absent any govern-
`ment action.” Hendler, 175 F.3d at 1382. “[I]n the flooding
`cases such as Bartz, in which dams are built to control nat-
`ural flooding, the result, even though it denies recovery for
`property actually taken, is seen as not being ultimately in-
`equitable.” Id. at 1383.
`The cases discussing the relative benefits doctrine ex-
`amine the overall benefits of the government action with
`respect to the particular property as compared to the det-
`riment that was suffered. See Sponenbarger, 308 U.S. at
`266 (considering the “benefits [of the governmental activi-
`ties] when measured in the whole”); Accardi, 599 F.2d at
`429–30 (considering the benefit to the plaintiffs’ land by
`comparing the existence of a government project, a river
`
`
`
`Case: 19-1678 Document: 65 Page: 8 Filed: 06/19/2020
`
`8
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`ALFORD v. UNITED STATES
`
`division, to “what would have occurred in consequence of
`the severe . . . storm [event at issue] had [the government]
`not constructed the division at all”); Hendler, 175 F.3d at
`1381–82 (considering the government’s “investigat[ion], by
`way of testing and sampling, [groundwater] contamina-
`tion,” was a benefit “inure[d] to [the] plaintiffs because of
`its peculiar relation to their land,” and that the trial court
`could “offset[] this . . . benefit against the value of the ease-
`ments [that the government had allegedly] taken” when
`carrying out the project).1
`In this case the parties have taken a narrower view,
`focusing not on the overall benefits of the government pro-
`ject on the plaintiffs’ properties, but on only the benefits to
`the plaintiffs’ properties from the government’s 2011 deci-
`sion to raise the water level of Eagle Lake. Even assuming
`that this narrow focus was correct, the plaintiffs make no
`claim that they would have been better off if the govern-
`ment had allowed the levee to breach. The government’s
`uncontested evidence showed that, in the event of a breach
`of the levee, the water level of Eagle Lake would have far
`exceeded that caused by the Corps’ intentional flooding.
`Each of the plaintiffs suffered considerably less damage
`due to the government’s planned flooding of Eagle Lake
`
`
`1 The cases make clear that our inquiry must be fo-
`cused on the particular property owned by the plaintiffs
`and claimed to have been damaged. See Sponenbarger, 308
`U.S. at 266 (focusing its inquiry on the benefits to the “par-
`ticular tract of land” at issue); Accardi, 599 F.2d at 429–30
`(focusing its relative benefits analysis on the “plaintiffs’
`real properties”); Hendler, 175 F.3d at 1382–83 (explaining
`that the relative benefits doctrine balances “the harm
`caused [to] the landowner by the Government’s . . . action
`[with] any special benefits that happen as a result to accrue
`to the [landowner’s] land”).
`
`
`
`Case: 19-1678 Document: 65 Page: 9 Filed: 06/19/2020
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`ALFORD v. UNITED STATES
`
`9
`
`than if the levee had breached.2 The Claims Court ex-
`pressly found that the plaintiffs had directly benefitted
`from the government’s action. The Claims Court found
`that it was “certainly true” that the flood protection offered
`by the levee and Control Structure “benefitted the plain-
`tiffs.” J.A. 3. Absent government intervention, “the likeli-
`hood of [a] breach [of the levee] was over 95%.” J.A. 2. “If
`the levee had broken,” the “[p]laintiffs’ propert[ies] would
`have been totally inundated” and would have “suffered
`more serious damage than they actually did.” J.A. 3.
`“[T]he plaintiffs would have been far worse off . . . .” Id.
`Under the Claims Court’s findings, the benefit of the gov-
`ernment action, with respect to preventing a breach of the
`levee, outweighed the damage caused by the government’s
`flooding of Eagle Lake.
`The Claims Court, however, refused to apply the rela-
`tive benefits doctrine, reasoning that it was inappropriate
`to “apply[] a hypothetical situation to discount the harm
`plaintiffs suffered in the real world.” Id. There is no basis
`for refusing to consider “the hypothetical world where the
`breach [of the levee] occurred.” Id. Courts applying the
`relative benefits doctrine have consistently considered
`what would have occurred absent government action. See,
`
`
`2 The Claims Court awarded Mr. MacNealy, whose
`property suffered the most damage, $79,000 for diminution
`in the fair market value of his property based on the testi-
`mony of the government’s expert, Mr. Parker. The record
`shows that Mr. MacNealy’s damages would have been
`$147,000 if the levee had breached. Trial Transcript at
`1582, 1594, Alford v. United States, 141 Fed. Cl. 421 (2019)
`(No. 1:14-cv-003040-LAS), ECF No. 83. The other plain-
`tiffs would have been even worse off. For example, the
`Chaney property would have suffered a $208,000 loss if the
`levee had breached, as opposed to the $25,000 in damages
`due to the government’s action. Id. at 1560.
`
`
`
`Case: 19-1678 Document: 65 Page: 10 Filed: 06/19/2020
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`10
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`ALFORD v. UNITED STATES
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`e.g., Sponenbarger, 308 U.S. at 266 (“The Government has
`not subjected respondent’s land to any additional flooding,
`above what would occur if the Government had not
`acted . . . .”); Accardi, 599 F.2d at 429–30 (noting that the
`plaintiffs had failed to compare the government’s action to
`“what would have occurred . . . had [the government] not
`[acted] . . . at all”); Hendler, 175 F.3d at 1382 (noting that
`the relative benefits doctrine “takes its force from the . . .
`equitable principle that the Government’s obligation is . . .
`to restore the landowner to the position he was in absent
`any government action”). Nor is the relative benefits doc-
`trine rendered inapplicable because the government’s ac-
`tion was intentional, and the government was aware that
`its actions would have damaged the plaintiffs’ properties.
`Sponenbarger, 308 U.S. at 260 (finding no taking even
`though the plaintiff had alleged that the government’s con-
`struction plan involved an “intentional . . . flooding” of her
`land). The Claims Court erred by failing to consider what
`would have happened if the government had allowed the
`levee to breach.
`The Claims Court found it significant that the benefits
`to the general public were substantial. The relative bene-
`fits doctrine does not compare the benefits conferred on the
`community at large to the damage suffered by the plain-
`tiffs. While the purpose of the Takings Clause is “grounded
`upon a conception of the injustice in favoring the public as
`against an individual property owner,” Id. at 266, the rela-
`tive benefits doctrine requires determining whether the
`burden on the plaintiffs’ property is outweighed by the ben-
`efits conferred on that property. The benefit to the commu-
`nity at large has nothing to do with the relative benefits
`comparison.
`The Claims Court also suggested that it would not con-
`sider the benefits of the levee and Control Structure be-
`cause, “[i]f the benefits citizens get from the federal
`government are to be put on the scale in a taking case, the
`citizen would always
`lose” because
`“[g]overnment
`
`
`
`Case: 19-1678 Document: 65 Page: 11 Filed: 06/19/2020
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`ALFORD v. UNITED STATES
`
`11
`
`programs benefit all citizens in various ways.” J.A. 3.
`There is no suggestion that all government benefits must
`be considered under the relative benefits doctrine. The rel-
`ative benefits doctrine considers only government actions
`directed to the particular property at issue and considers
`only government activities directed to mitigating the type
`of problem that caused the damage. See Sponenbarger, 308
`U.S. at 265–66 (explaining that the government had not
`subjected the plaintiff’s land to “additional flooding” and
`“the same floods and the same damages would occur had
`the Government undertaken no work of any kind”). The
`levee and Control Structure are directed to the same type
`of flooding injury that the plaintiffs in this case suffered.
`The general benefits of having a federal government, such
`as the “military keep[ing] the region from being overrun by
`foreign governments,” J.A. 3, are not the types of benefits
`relevant to the relative benefits analysis in the flood con-
`trol context.
`Under the circumstances here, the relative benefits
`doctrine compels a conclusion that there was no liability:
`the plaintiffs’ properties would have been “far worse off”
`and “suffered more serious damage” if the government had
`not acted. Id. We need not reach the government’s remain-
`ing arguments. The judgment of the Claims Court is re-
`versed.
`
`REVERSED
`
`