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Supreme Court Denies Cert For Appeal of Ruling That Federal Government Not Liable For Flood Destruction From Hurricane Katrina

By Jennifer Hans,

WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on June 24 refused to hear an appeal of a lower federal court's ruling that the application of the discretionary function exception (DFE) to the Federal Tort Claims Act (FTCA) completely insulates the U.S. government from liability for claimants' Hurricane Katrina flood damage (Kent Lattimore, et al. v. United States, et al., No. 12-1092, U.S. Sup.). [ subscribers may access Supreme Court briefs for this case].

Hurricane Katrina Damage Lower Ninth Ward

The Army Corps of Engineers dredged the Mississippi River Gulf Outlet (MRGO) shipping channel, as well as levees alongside the channel and around New Orleans.   The Corps' alleged negligence in maintaining the MRGO purportedly caused levees to fail and aggravated the effects of Hurricane Katrina on New Orleans.

After Berthelot, et al. v. Boh Bros. Construction, et al. (C.A. No. 05-4182) [enhanced opinion available to subscribers], which sought damages arising out of all levee breaches in the aftermath of Hurricane Katrina, was filed in the U.S. District Court for the Eastern District of Louisiana, numerous other complaints seeking damages as a result of the levee breaches were filed.  As a result, the court consolidated the filings under the caption In re:  Katrina Canal Breaches Consolidated Litigation.   


One of three groups of bellwether plaintiffs, known as the Armstrong plaintiffs, and Entergy New Orleans Inc., Entergy Louisiana L.L.C. and Hartford Steam Boiler Inspection and Insurance Co., which are collectively referred to as Entergy plaintiffs, claimed that the two floodwall failures on the east side of the Inner Harbor Navigational Canal (IHNC) occurred because of the Corps' "extensive excavation and subsurface activity [at that area], thereby undermining the integrity of the eastern shoreline of the IHNC abutting the Lower Ninth Ward of Orleans Parish, and ultimately contributing to the flooding caused in those areas by Hurricane Katrina" (Armstrong v. United States (No. 10-866 [E.D. La.]). 

The United States moved to dismiss, arguing that it is immune from liability for Hurricane Katrina flood damage under Section 702c of the Flood Control Act of 1928 and under the DFE to the FTCA.  Judge Stanwood R. Duval Jr. denied the motion on Feb. 11, 2011. 

On Aug. 12, the United States again moved to stay the Armstrong action against it pending the resolution of Robinson v. United States (No. 10-30249 [5th Cir.]).  Judge Duval denied the motion.  


Robinson, which sought flood damages against the United States, went to trial. The District Court found that neither the FCA nor the DFE to the FTCA protected the government from the lawsuit [enhanced opinion available to subscribers]. 

The District Court concluded that three of the seven Robinson plaintiffs had proven the government's full liability and that four did not.  

The United States successfully moved to dismiss the Anderson lawsuits, named for another group of bellwether plaintiffs. 

The United States appealed to the Fifth Circuit.  The losing Robinson plaintiffs and the plaintiffs in the Anderson lawsuits cross-appealed.  The United States sought a writ of mandamus ordering the District Court to stay trial until the Fifth Circuit issued an opinion in Robinson and the Anderson lawsuits.  

On March 2, 2012, the panel affirmed the District Court's ruling that the United States is not immune from liability under Section 702c of the Flood Control Act of 1928 and under the DFE to the FTCA.  Judge Jerry E. Smith wrote the opinion, which was joined by Judges Edward C. Prado and Jennifer Walker Elrod. 


On Sept. 24, 2012, the same panel reversed itself. 

"Our construction of the FCA leaves undisturbed the district court's ruling on that issue.  Our application of the DFE, however, completely insulates the government from liability," the panel said. 

On March 7, the plaintiffs filed a petition for writ of certiorari in the U.S. Supreme Court. 

Justice Elena Kagan took no part in the high court's decision denying the petition. 


David C. Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington represents the petitioners.  

Solicitor General Donald B. Verrilli Jr. of the U.S. Department of Justice in Washington represents the United States. 

James David Caldwell of the Office of the Attorney General for the State of Louisiana in Baton Rouge filed an amicus curiae brief on behalf of the State of Louisiana.  Richard A. Derevan of Snell & Wilmer in Costa Mesa, Calif., filed an amicus curiae brief on behalf of the Members of Congress. 

Herb Fox of Santa Barbara, Calif., filed an amicus curiae brief on behalf of the Concerned Scientists, Engineers, and Academics.  Elisa T. Gilbert of The Gilbert Firm in New York filed an amicus curiae brief on behalf of Entergy New Orleans Inc., et al.  Oliver Austin Houck of Tulane Law School in New Orleans filed an amicus curiae brief on behalf of professors of law and public interest environmental leaders.

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