Case: 19-1678   Document: 65   Page: 1   Filed: 06/19/2020




   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.
                 ______________________
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 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.
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 4                                   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.

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
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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, 

, 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, 

, 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, 

 (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.

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).
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 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, 

, 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, 

(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.

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.”

 The construction of floodways was therefore necessary to
 “limit to predetermined points . . . escapes of floodwaters
 from the main channel.”

      The Court noted that the district court had found that
 the floodway in question had “always been a natural flood-
 way,”

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,”

“[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.”

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
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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.”

court, the Court of Claims, applied the
 rule announced in Sponenbarger in Ark-Mo Farms, Inc. v.
 United States, 

(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].”

Again in Accardi v. United States, 

(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.”

see also Bartz v. United States,
 

, 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.” 

. “[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.”

     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 

(considering the “benefits [of the governmental activi-
 ties] when measured in the whole”); 

–30 (considering the benefit to the plaintiffs’ land by
 comparing the existence of a government project, a river
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 8                                     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”); 

–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 

(focusing its inquiry on the benefits to the “par-
 ticular tract of land” at issue); 

–30
 (focusing its relative benefits analysis on the “plaintiffs’
 real properties”); 

–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”).
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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 . . . .”

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.”

no basis
 for refusing to consider “the hypothetical world where the
 breach [of the levee] occurred.”

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, 

(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.

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 10                                  ALFORD   v. UNITED STATES



 e.g., 

(“The Government has
 not subjected respondent’s land to any additional flooding,
 above what would occur if the Government had not
 acted . . . .”); 

–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”); 

(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.
 

(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,”

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
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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 

–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.

not reach the government’s remain-
 ing arguments. The judgment of the Claims Court is re-
 versed.
                        REVERSED