Unpublished Disposition, 933 F.2d 1014 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1014 (9th Cir. 1991)

Kurt HIERSCHE, Personal Representative of the Estate ofJerome L. Hiersche, Deceased, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 89-35416.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 8, 1991.Decided May 14, 1991.

Before JAMES R. BROWNING, CANBY and TROTT, Circuit Judges.


MEMORANDUM* 

We affirm the dismissal of appellant's claim for lack of jurisdiction. The parties concede flood control is one of the purposes of the John Jay Dam. Although the purpose of the orifice into which Jerome Hiersche was drawn was fish conservation rather than flood control, the flood waters contained in the dam were a substantial factor in his death. See United States v. James, 478 U.S. 597, 605 (1986); McCarthy v. United States, 850 F.2d 558, 561-62 (9th Cir. 1988). Appellant urges us to reconsider the holding of McCarthy. However, as a three member panel of this Court, McCarthy binds us.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3