5th Circuit Reverses Katrina Decision over Liability of Army Corps

On Monday, in an extraordinary move, a three-judge panel of the 5^th U.S. Circuit Court of Appeals in New Orleans withdrew its earlier ruling in March in which it had ruled in favor of more than 400 property owners attributing their Katrina-related property losses to neglect by the Army Corps of Engineers.

The plaintiffs had alleged that the delay made by the Army Corps of Engineers in armoring and strengthening the Mississippi River-Gulf Outlet shipping channel against flood damage had caused their loss of property from flood damage caused by Katrina. The plaintiffs also alleged that the Army Corps of Engineers had delayed in carrying out their responsibilities based upon incorrect scientific findings and did not consider their duties against public policy requirements.

However, the 5^th U.S. Circuit Court of Appeals, in reversing itself, found that the Army Corps of Engineers cannot be held liable in the case.

Writing on behalf of the court, Judge Jerry Smith observed that the Army Corps of Engineers was immune from being sued under the “discretionary function exception” of the Federal Tort Claims Act. The said exception prevents people from suing the government where breach of duty involves discretionary and not statutory action on part of an agency.

The new decision in the matter also reverses the 2009 ruling of U.S. District Judge Stanwood Duval Jr. who had found that in lawsuits arising out of Katrina’s flood damage, the federal government could not plead immunity.

A lawyer for the plaintiffs, Joseph Bruno said in an email, “The fact that the judges reversed themselves deserves an explanation … The decision is a slap in the face of the people devastated by the Corps’ gross negligence and an endorsement to the Corps to continue to put considerations of costs ahead of safety.”