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Feds Challenge Sovereign Immunity in Hurricane Katrina Lawsuit

By Robyn Hagan Cain on November 18, 2011 | Last updated on March 21, 2019

Louisiana has survived another hurricane season without a Katrina-grade catastrophe; no doubt, a source of relief for the Bayou State.

While the Northeast contemplated what exactly one does to endure the eye of the storm during August’s Hurricane Irene, the hurricane pros down south were still rebuilding from a disaster that the rest of the country has largely forgotten.

For the federal government, however, Hurricane Katrina remains much more than a plot point on “Treme;” it’s a billion-dollar time bomb.

Last week, the Fifth Circuit Court of Appeals heard arguments in an appeal to In re Katrina Canal Breaches Civil Action Consolidated Litigation, a 2009 case in which U.S. District Judge Stanwood Duval found that sovereign immunity under the Flood Control Act of 1928 (FCA) insulated the Army Corps of Engineers' from negligence claims related to their flood control projects, not their navigation projects.

In a 156-page opinion, Judge Duval wrote, "The Corps' lassitude and failure to fulfill its duties resulted in a catastrophic loss of human life and property in unprecedented proportions. The Corps' negligence resulted in the wasting of millions of dollars in flood protection measures and billions of dollars in Congressional outlays to help this region recover from such a catastrophe. Certainly, Congress would never have meant to protect this kind of nonfeasance on the part of the very agency that is tasked with the protection of life and property."

The seven plaintiffs in that Katrina lawsuit won over $100,000 each. If the Fifth Circuit Court of Appeals affirms the decision, the federal government could be on the line for similar amount for ... "half a million administrative claims from flood victims alleging similar facts" reports Environmental Law Prof Blog.

The government is challenging the case in the Fifth Circuit Court of Appeals, hoping that the appellate court will view the Corps' sovereign immunity protection differently. Pierce O'Donnell, the lead plaintiffs' attorney in the case, told that feds believe the cause of the failure is irrelevant to the sovereign immunity determination. "They are saying that even if the levees and floodwalls failed due to an independent act of negligence, the Corps is still immune."

The Fifth Circuit should issue a ruling by early 2012, according to the Times-Picayune. The losing side is expected to challenge the decision in the Supreme Court.

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