[StBernard] Hurricane Katrina damage judgment against Army Corps of Engineers is reversed by federal appeals court

[Westley Annis]

Hurricane Katrina damage judgment against Army Corps of Engineers is
reversed by federal appeals court
 By Mark Schleifstein, The Times-Picayune 

The Army Corps of Engineers is not liable for billions of dollars in flood
damage in the Lower 9th Ward and St. Bernard Parish during Hurricane Katrina
that a lower court said resulted from the agency's failure to maintain the
Mississippi River-Gulf Outlet, a three-judge panel of the U.S. 5th Circuit
Court of Appeals ruled Monday. The corps was immune from damages because of
a provision in the law governing suits against the federal government that
protects an agency when it makes a discretionary decision.

The 9th Ward remained mired in Hurricane Katrina floodwaters 10 days after
the storm, in September 2005.
In the case of the construction and maintenance of the MR-GO, the panel
found that the corps may have abused its discretion or simply made errors in
inadequately studying the effects of the shipping channel during
environmental studies, in deciding against extra protection along the failed
segment of St. Bernard levees, and in delaying a decision to "armor"
segments of the levee and shoreline with grasses, each of those decisions
were immune from lawsuit under the law.

The ruling reverses a March decision by the same panel that found U.S.
District Judge Stanwood Duval Jr. was correct a November 2009 decision in
ruling that the failure to maintain the MR-GO was unrelated to flood control
activities represented by the levees along its banks, and instead was the
equivalent of a Navy captain failing to maintain a ship that crashes through
a levee.

Joseph Bruno, an attorney representing the plaintiffs in the case, said he
was surprised and disappointed by the panel's reversal.

"I'm baffled how they got to where they reversed their original conclusion,"
he said. "It's a real stretch to give (the corps) more immunity."

In its ruling, the appeals panel again agreed with Duval that the flooding
effects of the MR-GO were not protected by a provision of the 1928 Flood
Control Act that gives the corps immunity from flooding caused by the
failure of flood protection projects, even when it is the result of
negligent and wrongful acts of federal employees. But the new ruling found
that the "Discretionary-Function Exception" under the Federal Tort Claims
Act bars lawsuits on claims that the law says are "based upon the exercise
or performance or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused."

Duval found that the corps violated the National Environmental Policy Act in
three ways: the original 1976 environmental impact study was flawed; the
corps never filed a supplemental environmental study, despite a dramatic
expansion in the channel's size caused by the corps' inadequate operation
and maintenance procedures; and it kept the public uninformed of the
channel's effects.

But the appeals court found that by following the federal environmental law,
even with those flaws, it fell under the discretionary clause.

"At most, the corps has abused its discretion -- an abuse explicitly
immunized" by the tort law provision, the ruling said.

The appeals panel agreed with Duval in ruling the discretionary function
also covered the corps' failure to recognize its design didn't provide for
armoring the channel's banks.

"The corps's actual resons for the delay (in armoring the banks and levee)
are varied and sometimes unknown, but there can be little dispute that the
decisions here were susceptible to policy consideration," the panel ruled,
and thus is shielded by the legal exception.

The ruling also upheld Duval's earlier decision that flooding along the 17th
Street Canal in New Orleans was covered by the flood control law's immunity
clause, and that a decision by the corps not to build a barrier structure to
block flooding in eastern New Orleans also was covered by the discretionary
function exception.

That part of the ruling confirmed that lead plaintiff and WDSU-TV anchor
Norman Robinson and his wife were not entitled to damages.

The ruling also reversed Duval's decision in favor of Anthony and Lucille
Franz, who owned a home on St. Claude Avenue in the lower 9th Ward that they
were owed $100,000 plus interest and court costs for flood damage to the
second floor of their home by water from the St. Bernard levees.

Other plaintiffs in the overturned lawsuit are Tanya Smith of Chalmette, who
Duval ruled should receive $317,000 and interest and court costs; former
Tulane University football Kent Lattimore, who lost is St. Bernard trailer
home and was awarded $134,665 in interest and court costs; and his Lattimore
and Associates real estate appraisal business, which was awarded $168,033.25
with interest and court costs.

Plaintiffs may still request a rehearing by the full 5th Circuit, or appeal
to the U.S. Supreme Court. If that court were to overturn the new appeals
court ruling, it would clear the way for others who filed claims forms with
the corps in the year after Katrina to request action on those forms. As
many as 300,000 forms were filed, but only about 100,000 cases are likely to
be eligible for payment.

The ruling may also cast doubt on a trial now underway before Duval over
whether the corps and a contractor, Washington Group International, are
liable for Lower 9th Ward and Arabi flood damage caused by removing pilings
and other objects inside the Industrial Canal that plaintiffs say helped
floodwalls to fail in two locations. That trial also requires Duval to find
that the damage was caused by a non-flood control project, and that the
discretionary function exclusion does not apply to the corps' decision to do
the work.

Bruno, who also represents plaintiffs in that case, said he doesn't think
the corps will be successful in arguing that the discretionary function
exception protects it from liability resulting from improperly filling holes
in the canal that allowed water to undermine the walls.

The pilings and other structures were removed as part of corps plans to
expand the navigation lock in the canal.

Soon after the appeals panel's initial March ruling, the Justice Department
requested the entire 5th Circuit rehear the case. In Monday's decision, the
appeals panel said it treated that request as a petition for a rehearing by
the original panel, and withdrew its original opinion.

The appeals court ruling was written by Judge Jerry Smith of Houston,
appointed by Ronald Reagan, and agreed to by Judge Edward Prado of San
Antonio and Jennifer Elrod of Houston, both appointed by George W. Bush.