5th Cir Panel Backtracks: Corps Isn't Liable for Katrina Breach

By Robyn Hagan Cain on September 25, 2012 | Last updated on March 21, 2019

In March, a Fifth Circuit panel decided that the Army Corps of Engineers (Corps) was liable to property owners who suffered billions of dollars in damage during Hurricane Katrina. Tuesday, the same panel decided that the Corps decisions regarding the Mississippi River Gulf Outlet (MRGO) — the channel at the center of the lawsuits — were judgment calls based on public policy considerations.

Now, the panel says that plaintiffs can’t sue the Corps.

So what gives? The discretionary-function exception to the Tort Claims Act.

The MRGO was designed to be 36 feet deep and 500 feet wide. While constructing the MRGO, the Corps also implemented the Lake Pontchartrain and Vicinity Hurricane Protection Plan (LPV). Under the LPV, the Corps constructed levees to protect New Orleans East and Chalmette and higher floodwalls in the outfall canals at 17th Street, Orleans Avenue, and London Avenue.

The MRGO construction exposed "fat clay," a form of soil soft enough that it will move if it has to bear a load. The channel's original designers considered, and rejected, armoring its banks with foreshore protection, leaving them vulnerable to erosion. The resulting erosion, largely from wave wash from wakes left by channel-going vessels, caused the MRGO to grow to an average width of 1,970 feet - more than three times its authorized width.

Though the Corps eventually added foreshore protection in the '80s, the delay destroyed the banks that would have helped protect a Chalmette-area, Reach 2 levee from front-side wave attack as well as loss of height. The increased channel width added more fetch as well, allowing for a more forceful frontal wave attack on the levee. That eventually allowed Hurricane Katrina to generate a peak storm surge capable of breaching a Reach 2 Levee.

A Fifth Circuit Court of Appeals panel initially agreed with District Judge Stanwood Duvall that plaintiffs could sue the Corps for damages. This week, the same panel withdrew that earlier decision and ruled that the discretionary function exception to the federal Tort Claims Act "completely insulates the government from liability," reports The New York Times.

The discretionary function exception bars suit on any claim that is "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty ... whether or not the discretion involved be abused."

The Supreme Court created a two-part test for determining whether a government action qualifies as a discretionary function. First, the conduct must involve "an element of judgment or choice" Second, the government's action or decision must be based on public policy considerations. Since the Corps' MRGO construction decisions satisfied the two-part test, the Fifth Circuit concluded that the government was not liable for the Katrina breaches under the discretionary function exception.

With over 400 plaintiffs, and billions of dollars at stake, you can bet that this decision will be appealed. The question is whether attorneys will ask for a Fifth Circuit en banc review, or if they will skip to a Supreme Court petition.

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