Katrina blues

Did any of you notice that a bunch of Katrina-flooded New Orleans plaintiffs won a huge judgment against the Corps of Engineers in federal court in 2009?  I never heard a peep about it.  Anyway, it went up on appeal to the 5th Circuit, where a 3-judge panel initially affirmed the judgment last March.  This month, however, the same 3-judge panel reversed itself, ruling that the "discretionary function exemption" insulated the federal government from all liability, even assuming the Corps's error rose to the level of abuse of discretion.  Apparently the decision turns on whether the Corps's handling of the levee system turned primarily on public policy discretion or objective engineering judgment; if the former, the Federal Tort Claims Act prevents any liability.  It's unclear why the panel decided to reverse itself, an unusual move, but it may have been persuaded by arguments made by the government in seeking a re-hearing from the full 5th Circuit.  Is it possible the effect of the "discretionary function exemption" simply wasn't stressed in earlier arguments?   If so, then whoever wrote the most recent set of pleadings for the Corps deserves a lot of credit for turning around his client's fortunes.

There is also a 1928 Flood Control Act that shields the Corps from the consequences of the failure of flood protection projects, even if caused by negligent and wrongful acts of federal employees. The lower court had found that the Flood Control Act exemption applied only to a limited part of the Katrina flooding, while other flood damages resulted from the operation and maintenance of the "MR-GO" or Mississippi River Gulf Outlet levee system, which concerns navigation rather than flood control. Under the new 5th Circuit ruling, the Corps is insulated from liability regardless of whether its projects concerned flood control or navigation.

I can't say I disagree with the decision, or that I have any real understanding of the various liability exemptions involved.  I will say that the following is a less-than-enthusiastic endorsement of the Corps's judgment:

The corps's actual reasons 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.