B-226619 July 2, 1987

B-226619: Jul 2, 1987

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Alexander: This is in response to your letter of February 27. As we will discuss in more detail. There are severalpossible options for additional action. The property is located within a leveed floodway which is part of the St. He asserted that these deposits were caused by sand carried onto his property by the flow of the St. Based in large part upon a Corps engineering analysis which had concluded that there was no causal relation between the Channel and the sand deposits in the area of Mr. The major points covered by this report are as follows. The area of sand deposits is located between a federal levee to the west. The report noted that while the private levee could have caused the sand deposits.

B-226619 July 2, 1987

The Honorable Bill Alexander House of Representatives

Dear Mr. Alexander:

This is in response to your letter of February 27, 1987, regarding the claim of Mr. Wendell Eubanks for damages resulting from an alleged taking of his farmland by the government without compensation. Mr. Eubanks asserted that sand deposits caused by a government flood control project rendered his land untillable. Our Claims Group has denied Mr. Eubanks' claim. As we will discuss in more detail, based on the information available to us, our Claims Group had no other alternative. However, there are severalpossible options for additional action, should Mr. Eubanks wish to pursue the matter further.

FACTS

Mr. Eubanks filed a claim with the Department of the Army, Memphis District Corps of Engineers (Corps), on November 11, 1985, requesting compensation for $108,000 of property damage plus loss of crops caused by sand deposits to his land. The property is located within a leveed floodway which is part of the St. Francis Basin Project. He asserted that these deposits were caused by sand carried onto his property by the flow of the St. Francis River, following the 1967 construction of the Wilhelmina Cut-Off Channel, north of the property.

On March 24, 1986, the Corps recommended that the claim be denied, based in large part upon a Corps engineering analysis which had concluded that there was no causal relation between the Channel and the sand deposits in the area of Mr. Eubanks' land. On August 20, the Office of the Chief of Engineers referred Mr. Eubanks' claim to GAO as a doubtful claim pursuant to GAO's Policy and Procedures Manual for Guidance of Federal Agencies, tit. 4, Sec. 5.1 (TS No. 4-21).

PRIOR GAO SETTLEMENT

The Corps provided a detailed administrative report to support its position that government action did not cause the sanding of Mr. Eubanks' land. The major points covered by this report are as follows. First, the Corps noted that the claimants alleged that sand deposits had not begun to occur until 1978 or 1979. By 1978-79, however, the Channel had been in operation for 11 years, with no apparent problem. of sand deposits. Second, the area of sand deposits is located between a federal levee to the west, and a private levee to the east of the property. The report noted that while the private levee could have caused the sand deposits, it was not under the management and responsibility of the Corps, so that these conditions were beyond the agency's control. Third, Mr. Eubanks had asserted that other landowners in neighboring farm areas had been compensated by the government for sand deposit. on their property. The Corps responded that these landowners owned property in a more northerly reach of land, at which different river conditions and flow from the Channel did in fact result in sand deposits to their property. In comparison, the Corps engineering study showed that, based upon an analysis of river sediment transport capability data, the sand deposited upon Mr. Eubanks' property was not carried down to the property by the Channel.

In contrast, the claimant has presented essentially no evidence to support the allegation that the sand deposits were caused by the Channel. For example, in his February 18, 1987 letter to your office, Mr. Eubanks stated simply that "we feel that the Channel caused the damage.

As with a proceeding in any court, the claimant has the burden of proof, that is, he must establish the liability of the United States and his right to payment. E.g., B-194289, June 27, 1979. As Mr. Eubanks provided no concrete evidence to support his claim, our Claims Group had no choice but to disallow the claim, which it did on February 6, 1987.

Moreover, even if Mr. Eubanks were able to produce an engineering study which contradicted that of the Corps, there is little else GAO could do. our role in considering Fifth Amendment taking claims is limited. Where the record presents a factual conflict which we cannot resolve administratively, our practice is to disallow the claim and leave the claimant to pursue the matter in the courts where he can avail himself of a full adversary hearing. E.g., B-218982, Nov. 1, 1985. A Fifth Amendment taking claim involving conflicting technical data would be such a case.

AVAILABLE OPTIONS

At the outset, we wish to emphasize that nothing we say here should be construed as suggesting that any of the options we identify will necessarily succeed. As we will point out, each possible option presents obstacles, some of which may well prove insurmountable. In an attempt to be responsive to your request, we are merely outlining those avenues that are legally available to Mr. Eubanks should he wish to pursue the matter further.

A claim for damage to land falls under one of two theories: (1) a taking of private property by the government without compensation (called an "inverse condemnation. claim), or (2) a tort resulting in compensable property damage. As to the taking theory, the Fifth Amendment of the Constitution requires the federal government to compensate parties for the taking of their private property. B-190362, Dec. 14, 1977. The determination of whether or not a compensable taking has occurred is essentially one of fact, to be determined according to the circumstances of the case. Althaus v. united States, 7 Cl. Ct. 688, 693 (1985). To prevail, Mr. Eubanks would have to show that the sand deposits on his land were directly and proximately caused by government action. Loesch v. United States, 227 Ct. C1. 34, 43, 645 F.2d 905, 913, cert. denied, 454 U.S.1009 (1981).

Depending upon the facts determined, Mr. Eubanks' claim could also be characterized as one in tort. A constitutional taking requires a significant interference with a private individual's ownership rights in property. The Court of Claims held in one case that debris deposited on private property by government action in improving a waterway, although perhaps a depreciation of the land or consequential damage, was not a Fifth Amendment taking. Sanguinetti v. United_States, 55 Ct. C1.. 107 (1920), appeal dismissed, 261 U.S. 626 (1922), aff'd 24 U.S. 146 (1923). Baird v. United States, 5 C1. Ct. 324, 333 (1984). The deposits of sand could thus be interpreted as a tort, resulting from wrongful infringement upon Mr. Eubanks' property rights by the United States or its agents. B-190362, Dec. 14, 1977; B-152725, Feb. 19, 1964. The distinction (tort vs. taking) is important because different remedies apply.

With the above discussion in mind, the following alternatives for action by Mr. Eubanks exist:

1. Tort Claim: Administrative Remedy

Under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec.(s) 2671 2680, the head of each federal agency is authorized to administratively settle claims arising from the activities of that agency. /1/ The agency's settlement is "final and conclusive.. 28 U.S.C. Sec. 2672. Thus, GAO lacks jurisdiction to settle a tort claim involving another agency or to review the merits of the agency's settlement. B-199606, March 9, 1981. However, the statute provides for judicial review of denied claims. Mr. Eubanks originally submitted his claim to the Corps on a Standard Form 95, which is generally used for the submission of claims under the Federal Tort Claims Act. There is no indication in the file, however, that the Corps ever responded directly to Mr. Eubanks. Thus, Mr. Eubanks is entitled, as a matter of law, to pursue a response directly from the Corps. For several reasons, however, the chances of success would not seem encouraging.

Under 28 U.S.C. Sec. 2401(b), a claim under the FTCA is barred unless it is presented to the appropriate federal agency within 2 years after the claim accrues or unless suit is begun within 6 months of the date of the mailing of the agency's notice of final denial. In his Standard Form 95, Mr. Eubanks noted that the "Date and Day of Accident. was 1979-1985. In the form's "Date of Claim. section, however, he noted that an "original claim. was filed on November 4, 1982. We are not sure what this means, as there is no other mention or documentation of any prior claim in the record. A serious question here concerns exactly when, for statute of limitations purposes, Mr. Eubanks' claim "accrued." Upon questioning by the Corps, Mr. Eubanks stated that a lot of sand-had washed up onto his property as early as 1979. Nevertheless, he appears to have taken no action until, at the earliest-, his alleged filing of a claim in 1982. In addition, the only claim actually documented in the file was not submitted until November 1985. Even though sand continued to be deposited yearly onto the land up through 1985, it is possible that the damage to Mr. Eubanks' land was sufficiently great in 1979 to result in accrual of a cause of action, and to start the 2-year statute of limitations under 28 U.S.C. Sec. 2401(b). See Korgel v. United States, 619 F.2d 16 (8th Cir. 1980).

In addition to the statute of limitations issue, the nature of Mr. Eubanks' damages may still prevent recovery. Under 33 U.S.C. Sec. 702(c), the united States is not liable for tortious damage from or by floods or flood waters connected to its operation of flood control projects. Baird v. United States, 5 Cl. Ct. 324, 333 (1984). Although courts do not uniformly agree on the application of this statute, it is, according to case law, the result of a public policy determination to assist the government in embarking on protects in flood-prone areas and to free it from liability for the damages which occur, notwithstanding works undertaken to minimize them. Peterson v. United States, 367 F.2d 271 (9th Cir. 1966).

Finally, Mr. Eubanks indicated as the amount of his claim "$108,000.00 + loss of crops." The Federal Tort Claims Act requires any injured party to file an administrative claim for money damages for injury or loss of property as a prerequisite to filing suit on the claim. 28 U.S.C. Sec. 2675. One of the requirements of this administrative claim is that it state a "sum certain. request for recovery. 28 C.F.R. Sec. 14.2. An administrative claim form that fails to contain this requirement does not constitute a proper claim. There is case law supporting the proposition that a claim in the form Mr. Eubanks submitted is defective as lacking the required "sum certain.. See Robinson v. United States, 563 F. Supp. 312, 313-314 (W.D. Pa. 1983); Gunstream v. United States, 307 F. Supp. 366, 368-69 (C.D. Cal. 1969).

Assuming Mr. Eubanks could overcome these obstacles, he could ask the Corps to specifically address his claim under a tort theory of recovery. If the claim were denied, he would then be required to bring suit in the United States District Court within 6 months after the date of mailing, by certified or registered mail, of the Corps' notice of final denial.

The Corps has already taken the position in its report to us that Mr. Eubanks could not recover in tort since the damages are alleged to have resulted from the operation of a flood control project, and there is no reason to believe its response to Mr. Eubanks would be any different. However, as indicated earlier, we point out this option merely because the claimant has the right to pursue it.

2. Tort Claim: Judicial Remedy

As an alternative to further administrative review by the Corps, Mr. Eubanks would have the option of proceeding directly to court. The Corps failed to send Mr. Eubanks a denial of his claim within 6 months of its submission. The Corps' silence here can be construed as a final denial under the Federal Tort Claims Act, which provides at 28 U.S.C. Sec. 2675 that:

(a) An action shall not be instituted upon a claim against the United States . . . unless the claimant shall have first presented the claim to the appropriate federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is tiled shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. . . ." (Emphasis added).

Thus, Mr. Eubanks can file suit immediately in the United States District court for the district in which the damage occurred. Nevertheless, he should keep in mind that the same barriers to recovery exist as under the administrative option.

3. Inverse Condemnation Claim: Judicial Remedy

The Corps has already specifically considered the inverse condemnation theory and recommended that Mr. Eubanks not be allowed to recover for a constitutional taking of his property. AS noted previously, Mr. Eubanks ha. thus far produced no evidence to refute the Corps' position. If he wishes, Mr. Eubanks may file suit in the United States Claims Court, which has jurisdiction over taking claims in excess of $10,000. 28 U.S.C. Sec. 1491 He would, however, have to be prepared to respond to all of the points raised by the Corps. This would most likely necessitate expert witnesses and engineering studies similar to those already used by the Corps. under 42 U.S.C. Sec. 4654(c), however, Mr. Eubanks would be reimbursed for such expenses, including reasonable attorney, appraisal and engineering fees, if the court found in his favor.

CONCLUSION

Although GAO was required to deny Mr. Eubanks' claim, he has several possible options for additional action. He may pursue an administrative remedy under the Federal Tort Claims Act directly with the Corps. Be would then have 6 months to appeal a denial of his tort claim by that agency to the United States District Court, commencing on the date of the certified or registered mailing of the denial. In the alternative, he may proceed directly to the District Court, since, under 28 U.S.C. Sec. 2675, the Corps' failure to reply to his original claim can be deemed a denial, authorizing him to appeal. Finally, Mr. Eubanks may bring his taking claim to the United States Claims Court for a full fact-finding proceeding as to any possible government actions causing sand deposits to his farmland.

Once again, this letter should not be construed as GAO's encouragement to pursue any particular course of action, or as suggesting that any of them is likely to produce a result in Mr. Eubanks' favor. Nevertheless, we hope these comments will be of some use in providing guidance to your constituent.

Unless you indicate otherwise, this opinion will be made available, under limited distribution, after 30 days.

Sincerely yours,

Milton J. Socolar Comptroller General of the United States

1. Any award, compromise or settlement in excess of $25,000 requires the prior written approval of the Attorney General or his designee. 28 U.S.C. Sec. 2672.