NEW ORLEANS -- A federal appeals court
reversed itself Monday and threw out a judge's landmark ruling that the
Army Corps of Engineers was liable for billions of dollars in Hurricane
Katrina flood damage that property owners blame on the corps'
maintenance of a New Orleans shipping channel.
The
same three-judge panel from the 5th U.S. Circuit Court of Appeals that
sided with plaintiffs earlier this year withdrew that decision and
replaced it with a new ruling in the federal government's favor.
The
panel's new opinion says the corps is completely insulated from
liability by a provision of the Federal Tort Claims Act called the
"discretionary-function exception."
In 2009,
U.S. District Judge Stanwood Duval Jr. rejected the federal government's
argument that it is entitled to immunity from lawsuits blaming
Katrina's flood damage on the corps' operation and maintenance of the
Mississippi River-Gulf Outlet navigation channel.
Plaintiffs'
attorneys argued that the corps' delay in armoring the channel was the
result of erroneous scientific judgments, not public-policy
considerations that would make it immune to the homeowners' claims.
But
the 5th Circuit panel disagreed, saying there was ample evidence that
decisions leading to the corps' delay in armoring the channel had a
"public policy character."
"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," the panel wrote in its new opinion.
Joseph
Bruno, one of the lead plaintiffs' attorneys for the case, accused the
panel of essentially giving the corps a "get out of jail free card." He
said the lead plaintiffs' attorneys on the case would weigh their
options, which include asking the full 5th Circuit to rehear the case.
"It's heartbreaking for the people of our city," he said.
Bruno
said Monday's ruling has no bearing on a trial that started earlier
this month for separate but related claims that excavation work by a
corps contractor weakened New Orleans floodwalls and caused them to
breach in two places during the 2005 storm. Duval also is hearing
testimony in the case without a jury.
Duval
had awarded a total of nearly $720,000 in damages to five plaintiffs who
sued the corps over the shipping channel claims. The corps also has
received roughly 500,000 administrative claims that could become fodder
for similar suits.
The shipping channel, which
extends for 60 miles southeast from New Orleans to the Gulf of Mexico,
partially opened in 1963 and was closed about three years after Katrina
struck in August 2005. Over the decades, the corps' dredging of the
channel resulted in the loss of thousands of acres of wetlands that
helped protect greater New Orleans from hurricane flood waters.
Associated Press