Tuesday, September 25, 2012

U.S. 5th. Circuit reverses on Katrina ruling

The 5th U.S. Circuit Court of Appeals that sided with plaintiffs earlier this year, withdrew that decision, throwing out a landmark ruling that the Army Corps of Engineers was liable for billions of dollars in Hurricane Katrina flood damage that property owners blamed on the corps' maintenance of a New Orleans shipping channel, and, reversing itself, replaced that holding with a new ruling in the federal government's favor, yesterday. (Here)

USAToday, this morning, looked at the 5th. Circuit's change of mind holding that "the corps is completely insulated from liability by a provision of the Federal Tort Claims Act called the "discretionary-function exception."

The 5th. Circuit, in re-examining the Flood Control Act of 1928 (“FCA”), 33 U.S.C. § 702 and discretionary-function exception (“DFE”) to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(a), explained:

"Our interpretation of Section 702c and the caselaw, however, provides a rule slightly different from the district court's. Instead of its strictly categorical approach, which would have immunity attach only where a flood was caused b a project that had the purpose of flood control, we recognize immunity for any flood-control activity engaged in by the government, even in the context of a project that was not primarily or substantially related to flood control. Thus, for example, if the government had attempted foreshore protection inside the Mississippi River Gulf Outlet (“MRGO”), [[a shipping channel between New Orleans and the Gulf of Mexico, and levees alongside the channel and around the city (explanatory insertion ours)]] but that protection (whether by design or negligence) caused or exacerbated flood damage, the district court’s rule would grant the Corps no immunity, because MRGO was not a flood-control project. Our rule, by contrast, attaches immunity if the foreshore protection had flood control as its purpose— that is, if installing and maintaining foreshore protection was a flood-control activity regardless of the nature of MRGO, the overall project."

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