Fifth Circuit's Reversal on Katrina Litigation Leaves Flood Victims Gasping for Air

by Robert Verchick

September 27, 2012

I’ll forego reporting on India today to address a new development in the post-Hurricane Katrina litigation: Judge Jerry Smith’s breathless hairpin turn in the “Katrina Canal Breaches Litigation.” On Monday, Judge Smith, writing for a three-judge panel of the Fifth Circuit U.S. Court of Appeals, dismissed a lawsuit against the U.S. Army Corps of Engineers for flood damage during Hurricane Katrina, a case that could have exposed the federal government to billions of dollars in damages over the next several years. Judge Smith’s opinion reversed a decision he wrote just six months ago, representing the same three-judge panel, which had ruled the plaintiffs’ claims were legitimate and must move forward.

Why the switch? The new opinion suggests it is because the first time around all three judges somehow misunderstood the facts. But that’s unconvincing. A look at the court’s earlier opinion and the trial court’s original findings of fact shows that the Fifth Circuit got it right the first time. What’s more, this sudden reversal could deny thousands of flood victims the means to build back their lives, while narrowing the chances that the government can be held accountable for even the most pedestrian mistakes. I’ll return to these points in a moment, but first some background.

The Katrina Canal Breaches Litigation involves claims by residents of New Orleans and St. Bernard Parish for damages resulting from storm surge allegedly funneled through the Mississippi River Gulf Outlet (MR-GO), a navigation channel that has since been de-authorized and “plugged” for safety reasons. (I last blogged about this case here.) Plaintiffs argued that the Army Corps's negligence in design, construction, and maintenance of MR-GO increased Katrina’s storm surge and made the levee system more vulnerable than it otherwise would have been. Plaintiffs were particularly troubled by the Corps’s refusal to prevent erosion by armoring the banks at the time of construction and in the several years thereafter. The lack of armor—or “foreshoring,” as engineers call it—caused the channel’s width to expand considerably, leaving a perfect path for a bulldozing hurricane.

The Corps never refuted the factual claims and the trial court later characterized the agency’s actions as “negligent.” But the Corps argued its acts were shielded by two forms of government immunity, one based on the Flood Control Act of 1928 and the other based on the traditional doctrine of sovereign immunity. The first was correctly rejected by both the trial and appellate courts. The second is the focus of my analysis here.

Sovereign immunity generally bars suits against the government. The idea derives from the British fiction that “the King can do no wrong,” and thus cannot be hauled into his own court. Today that seems unfair, so a statute called the Federal Tort Claims Act waives the government’s sovereign immunity for personal injury claims caused by negligent acts as long as the act cannot be reasonably characterized as involving a balance of “policy” options.

In this case, the Corps tried to argue its failure to armor the channel was a policy choice that weighed public risk against construction cost. But neither the trial court nor the appellate court (the first time around) bought the argument. That’s because all of the trial testimony showed that Corps officials never believed the erosion posed a safety risk. They were tragically wrong about that; in fact, every scientific study available at the time said they were wrong about that. But the point is that the decision to let the channel erode happened not because someone thought the public risk was worth it, but because no one thought there was a public risk. It was as if the Corps were claiming that a crash caused by one of its truck drivers was caused not by the driver’s ignorance of worn-out brakes, but by her choice to balance the risk of worn-out brakes against the cost of replacing them.

But don’t take my word for it. Here’s the Fifth Circuit panel, in its original decision, describing the evidentiary record (italics mine):

The . . . plaintiffs and [friends of the court] point to ample record evidence indicating that policy played no role in the government's decision to delay armoring MRGO.

Then this:

The district court found as a matter of fact that, in . . . maintaining . . . the MRGO, the Corps labored under the mistaken scientific belief that the MRGO would not increase storm-surge risks.

Even the Corps’s own lawyers are willing to concede:

At oral argument in the district court, the United States made the same admission: The Corps “determined that MRGO played no role in major hurricane events” and, “for that reason, the Corps saw no reason” to take any steps to remedy MRGO's dangers.

And when confronted by a single vague quotation intended by the Corps to suggest some policy dimension, the court casually bats it aside:

Against the considerable evidence amassed to suggest that the Corps's decisions were grounded on an erroneous scientific judgment, not policy considerations, the government offers little affirmative evidence: “[I]n the Corps' view, maintaining MR–GO through dredging and raising the levees through separate projects allowed the Corps to maximize its limited resources and to continue operating the MR–GO as a shipping channel as Congress charged it to do.” This quotation is the closest the government comes to arguing that it had policy reasons . . . for delaying MRGO's armoring. But the government's contention cannot stand where there is no record evidence that, because of budgetary constraints, the Corps failed to implement feasible remedial measures or that it ever performed a cost-benefit analysis.

So there it is: the Corps never approached safety as a policy issue because it never understood safety as an issue at all. Corps officials said that. Corps lawyers said that. And, according to the appellate court, the whole “ample record evidence” says that.

And yet, somehow after a few months, all this judicial confidence goes wobbly. I imagine one of the judges waking up in the middle of the night crying, “Caesar’s Ghost! All this time I have misunderstood the facts of that vexing case.  I must call the others.” And something like that does indeed appear to have happened, for the next we read in the panel’s do-over opinion:

[T]here is ample record evidence indicating the public-policy character of the Corps's various decisions contributing to the delay in armoring. Although the Corps appears to have appreciated the benefit of foreshore protection as early as 1967, the record shows that it also had reason to consider alternatives (such as dredging and levee “lifts”) and feasibility before committing to an armoring strategy that, in hindsight, may well have been optimal.

Where before the “ample record evidence” showed an absence of policy considerations, the same “ample record of evidence” now shows a “public-policy character.” Where before “considerable evidence amassed” suggested the Corps never acknowledged a safety benefit to armoring, the Corps now appears to have “appreciated” the benefit of armoring all along and rejected it on policy grounds. And the Corps’s single quotation about dredging and raising levees, which was first characterized as not able to stand on its own, now becomes the foundation of the Court’s entire legal argument.

We may never know what spirits swayed the jurists at this late date. That’s a shame, because if a federal court is going to backtrack on a case of such magnitude, it owes us some analysis, not a few conclusory statements. If willful ignorance constitutes a policy choice, is there any incompetence that does not?

I’m afraid some will say plaintiffs should never have expected more in the first place. Did anyone really expect a government agency to be held accountable in such an exceptional case? Sure, Katrina was an outlier. But disasters as a category are not; they are the rule not the exception. If the King can be hauled into court when the stakes are low, the same must be true when the stakes are high.

Further, the reversal was all of ONE AND A HALF PAGES LONG. There is one word to describe this about-face, this flip-flop. Weird.
— Sandy Rosenthal
Unfortunately, the facts in this this judicial flip-flop, as Rob so "eloquently" and unfortunately accurately describes the situation and judgment reversal, reflects that dark smoking room politics continue to deprive justice and fulfill Gresham storied depictions of people above the law, systems above the law. What is lacking is the reality that just because three people say it was so, doesn't really make it so. We all know, including the defendants, that this is an immoral, unethical, and illegal judgment. Unfortunately, when dark rooms filled with smoke reveal very strange results, there is in fact nothing we can do about it. As some of say in New Orléans, "If at first we don't secede, try, but try again." Who knows maybe the 4th time will be the charm. Cheers, Rob - if only you could present arguments on this one...but then again, it's not about right-wrong, or best delivery as a barrister, is it?
— Mike Brantley
The funnelling effect of the MR-GO is very wall explained by storm surge researcher Hassan Mashriqui: “Storm surge pushing across shallow Lake Borgne from the east is constrained by these MRGO levees to the south and, to the north, by the long-standing levees of the Intracoastal Waterway (GIWW). Initially ten or more miles apart, these two channels meet, and when they do, the water building between their levees is squeezed into a single channel – the Funnel – only 260 yards wide, constrained by levees 14 feet to 16 feet high….In concert with the denuded marshes, it could increase the local storm surge hitting the Intracoastal Waterway by 20 percent to 40 percent – a critical and fundamental flaw.”
— Sandy Rosenthal
ianal... When you say King hauled into court, I think Magna Carta, and juries. Where's the jury in this case? Also re Magna Carta -- a recent essay by Noam Chomsky taught me that there were actually two charters to the Magna Carta, the Great Charter of Liberties and the Charter of the Forest which protected the commons from the sovereign. Now much eroded, like the Mississippi; needs restoring?
— k. l.
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Also from Robert Verchick

Robert R.M. Verchick holds the Gauthier ~ St. Martin Eminent Scholar Chair in Environmental Law at Loyola University, New Orleans, is the Faculty Director of the Center for Environmental Law at Loyola, and is a Senior Fellow in Disaster Resilience Leadership, Tulane University. He is the President of the Center for Progressive Reform.

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