It is as much the duty of the government to render prompt justice against itself in favor of citizens, as it is to administer the same between private individuals. . . (Abraham Lincoln).

Lance McNeely was a quadriplegic from injuries he received when he dove into the water to rescue a drowning comrade at a designated recreational area owned by the government and operated by the United States Corps of Engineers. Three other young men had received similar injuries when they dove into the water at the same place.

McNeely filed a claim against the government under the provisions of the Federal Tort Claims Act passed by Congress in 1948.

The United States District Judge, after an extensive hearing and having visited the scene where the young men's injuries had occurred, rendered a judgment for McNeely.

The trial judge found that the Corps of Engineers was guilty of, "conscious indifference to consequences from which malice must be implied."

The government appealed. The United States Eighth Circuit Court of Appeals reversed the trial judge's judgment stating that McNeely's injuries were caused by floods and flood waters and hence barred by the Flood Control Act of 1928.

The United States Circuit Courts in the Fifth and Ninth Districts had ruled in similar cases that the Flood Control Act of 1928 did not bar recovery, that these cases should be heard under the provisions of the Federal Tort Claims Act of 1948.

Customarily and desirably when there is a division in the United States circuit courts on a significant issue of law, the United States Supreme Court should resolve and clarify the law.

McNeely petitioned the United States Supreme Court to review his case and determine the intent of Congress on this vital issue.

The United States Supreme Court declined to review McNeely's case.

Having exhausted his remedies of law, McNeely petitioned the Congress through his representative whose district included the recreational area where McNeely and the other three young men had been injured.

The Honorable Bill Alexander
House of Representatives
233 Cannon House Office Building
Washington, D.C. 20515

Re: William Lance McNeely

Dear Congressman:

You are a very busy man. Many demands are being made for your time and attention. the coming session of Congress will be engrossed with the prospects of war, the budget, the inflation, recession, aid to the emerging democracies in Europe, and food for the Russian people. However, we never become too busy to right a wrong, redress a grievance, or to see that justice is done.

Abraham Lincoln, in the midst of the Civil War, while engaged in preserving the Union, addressed the issue of justice to private citizens:

It is as much the duty of the government to render prompt justice against itself in favor of citizens, as it is to administer the same between private individuals. . .
In this spirit, and in order that the government might be just, as well as sovereign, the Congress of the United States in 1948, passed the Federal Tort Claims Act (Title 28, U.S.C. §2674), providing that:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. . .

The United States Corps of Engineers, in addition to the navigational and flood control projects promulgated by Congress, has assumed an additional obligation of providing recreational activities in conjunction with its mandated mission.

"Rules and Regulations Governing Public Use of Corps of Engineers Water Resources Development Projects," Section 327.1, provides:

Policy. It is the policy of the Secretary of the Army, acting through the Chief of Engineers, to manage the natural, cultural and developed resources of each project in the public interest, providing the public with safe and healthful recreational opportunities while protecting and enhancing these resources. [Emphasis supplied.]

In pursuit of its recreational policy, the Corps of Engineers, Little Rock District, appointed a Recreational Officer to supervise recreational facilities under the jurisdiction of the Corps of Engineers in the Little Rock District. In the pursuit of carrying out its policies for providing recreational activities, the Corps of Engineers built Merrisach Lake Park, and, as an inducement to citizens to come and use the Park, they constructed a swimming area at the Merrisach Lake Park in Arkansas County.

Four young men, using the designated swimming area at Merrisach Lake and diving from the retaining wall, received severe spinal cord injuries. Three are paraplegics.

William Lance McNeely, aged 19 years, in an attempt to rescue a friend, dove from the retaining wall and fractured his cervical spine. He is a paraplegic. McNeely filed a claim against the government under the Federal Tort Claims Act. The case was heard by the Honorable Bruce Van Sickle, United States District Judge, who was assigned to the case. After hearing the evidence and visiting the scene of the accident, Judge Van Sickle found that:

. . .there is substantial evidence of "conscious indifference to consequences from which malice" must "be inferred." The United States, acting through the Corps of Engineers, in its layout, construction and administration of the swimming area paid little or no attention to any of the most elemental safety standards.

In finding for Lance McNeely, the Court stated:

There is no real issue as to the causal relationship between the conditions and the injury.

Following the findings of the Court, the Corps of Engineers placed "Danger" warning signs at the swimming area, fenced it off and closed this hazardous recreational facility, which, according to the experts, should never have been built.

The United States appealed Judge Van Sickle's opinion to the Eighth Circuit Court of Appeals, and the judgment against the government was dismissed on the grounds that McNeely's claim was barred by the Flood Control Act, which provides as follows [DeWitt Bank & Trust Company, Conservator of the Estate of William Lance McNeely v. United States of America, 878 F.2d 246 (8th Cir. 1989)]:

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 ... (Title 33 U.S.C. §702c)

In the case of Denham v. United States, 646 F.Supp. 1021 (W.D.Tex. 1986), the District Court in the Fifth Circuit held that:

Injuries sustained by swimmer were not caused by Government's operation of dam as flood control project, but rather, were result of dam's operation as recreational facility and, therefore, immunity provision of Flood Control Act did not bar suit against Government.

In the case of Boyd v. United States, U.S. Court of Appeals, 10th Circuit, August 2, 1989, suit was filed against the Government under the Federal Tort Claims Act for injuries sustained by a swimmer at a Corps of Engineers' recreational facility. A judgment was for the plaintiff. the Government appealed, alleging the Flood Control Act as a bar to the action. The Government's flood control defense was rejected, and the 10th Circuit court of Appeals held:

We believe Congress' concern was to shield the Government from liability associated with flood control operations, no liability associated with operating a recreational facility. . .

The Eighth Circuit court of Appeals, in reversing the McNeely judgment, relied upon the case of United States v. James, 106 S.Ct. 3116 (1986). In James the petitioners were injured when they were swept over the dam, while the Corps of Engineers was releasing flood waters through the flood gates at Millwood Dam in Arkansas. the Supreme Court held that this was a flood control operation; hence, a Federal Tort Claim was barred. Three of the Supreme Court judges dissented. Be it noted that the Flood Control Act was passed in 1928. The Federal Tort Claims Act was passed in 1948. The three dissenting judges, in James stated:

It would be regrettable but obligatory for this Court to construe the immunity provision to bar personal injury claims if such was the intent of Congress. But when a critical term in the statute suggests a more limited construction, and when the congressional debates are not only consistent with this construction, but nowhere reveal a recognition, let alone an intention, that the immunity provision would deprive those injured by governmental negligence of any remedy, a narrower interpretation is more faithful to the objective of Congress. It defies belief--and ascribes to the Members of Congress a perverse, even barbaric, intent--to think that they spent days debating the measure of extraconstitutional compensation they would provide riparian landowners but intended--without a single word of dissent--to condemn the widows, orphans, and injured victims of negligent operation of flood control projects to an irrational exclusion from the protection of the subsequently enacted Tort Claims Act.

The 8th Circuit Court, in Lance McNeely's case, goes far beyond the Supreme Court decision in James v. United States. In James the injured parties were swept over the dam in a flood control operation. McNeely was injured in an effort to save a life when he dove into the water at a designated swimming area.

There is a conflict between the 8th, and 5th and 10th Circuit Courts of Appeals as to whether or not the Flood Control Act bars a claim under the Federal Tort Claims Act when the petitioner is injured at a designated recreational facility. Customarily, the United States Supreme Court would resolve this conflict on a petition for a writ of certiorari. The Supreme Court has declined to do this. Therefore, we must turn to Congress to determine its intent.

Was it the intent of Congress, in passing the Federal Flood Control Act in 1928, declining to award damages to property owners damaged by floods, to bar claims under the Federal Tort Claims Act passed 20 years later (1948) for injuries sustained at a designated recreational facility, constructed and supervised by the Corps of Engineers? It is inconceivable that this intent of Congress could be so interpreted. In Denham v. United States, 914 F.2d 518, 521, the United States Court of Appeals, Fifth Circuit, 1987, held:

We do not believe that Congress intended one who as injured because of a danger negligently created by the Corps within a designated swimming area to have no legal remedy.

Could you find the time to visit with Wilbur Botts and me for about 30 minutes, in order that we may lay out to you in more detail and by documentation what I have outlined in this letter?

Would it be feasible for Congress, by resolution or legislative act, to clarify its intent as to whether or not federal tort claims, arising out of injuries at a designated recreational facility operated by the Corps of Engineers, are barred by the Flood Control Act?

Four young men have received severe spinal injuries at the Merrisach Park swimming area, constructed and operated by the Corps of Engineers in such a manner that the trial court found that there was a reckless disregard for safety of the public. Lance McNeely was injured when he attempted to rescue a friend drowning. Assuming that it is the intent of Congress not to bar a claim for injuries, such as that filed by Lance McNeely for the negligence of the Corps of Engineers, would it be feasible to pass legislation to compensate Lance McNeely for the amount of the award which the Court found that he was entitled to receive?

Wilbur and I do not wish to take up your time tilting at windmills, but the court has misinterpreted the intent of Congress, and a grave injustice has been done. Since the Supreme Court declines to resolve the conflict in the Circuit courts of Appeals, we can only appeal to Congress.

I conclude by repeating the sentiments of the three dissenting judges in James, supra, when they stated:

It defies belief--and ascribes to the Members of Congress a perverse, even barbaric, intent--to think that they spent days debating the measure of extraconstitutional compensation they would provide riparian landowners but intended--without a single word of dissent--to condemn the widows, orphans, and injured victims of negligent operation of flood control projects to an irrational exclusion from the protection of the subsequently enacted Tort Claims Act.

With best regards, I am

Yours sincerely,
/s/ Sidney S. McMath

Note: Congress was deaf to Lance McNeely and the cause he represented and personified-

Justice wept while Congress provided for its own.