Applying the discretionary-function exception (DFE), a provision of the Federal Tort Claims Act, the U.S. Court of Appeals for the 5th Circuit reversed a district court ruling that held the Army Corps of Engineers liable for flooding in New Orleans caused by Hurricane Katrina. 

Flood Control Act

The case involved hundreds of lawsuits, many of which were consolidated before the district court.  According to the plaintiffs, the Corps is protected from liability under the Flood Control Act only when flooding that causes damage is associated with a flood control project.  But, they argued, flooding of parts of New Orleans resulted from poor maintenance of the Mississippi River Gulf Outlet (MRGO), a shipping channel between New Orleans and the Gulf of Mexico, which the Corps constructed decades ago and periodically dredges. 

Plaintiffs alleged that the operation and maintenance of the MRGO caused a levee, called Reach 2, to be breached, resulting in flooding.  Since the MRGO is a navigation project and not a flood control project, the Corps should not be immune from liability, the plaintiffs stated. 

Integral flood control

The government defended itself by arguing that levees it had built around the MRGO in its Lake Pontchartrain and Vicinity Hurricane Protection Plan (LPV) were integral to the MRGO and therefore qualified the MRGO as a flood control project.  The Corps had considered foreshore protection of Reach 2 but delayed implementation because of the high cost.  The district court rejected this defense and the 5th Circuit agreed, stating:  “The dredging of MRGO was not a flood control activity, nor was MRGO so interconnected with the LPV as to make it part of the LPV.  Therefore, the flood waters that destroyed the plaintiffs’ property were not released by any flood-control activity or negligence therein.”

Public policy

The Corps fared better under the DFE.  According to the federal torts claim procedures, the DFE bars suit on any claim that is “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee or the Government, whether or not the discretion involved be abused.”  The 5th Circuit has noted that the purpose of the DFE “is to prevent judicial second-guessing of legislative and administrative decisions ground in social, economic, and political policy through the medium of an action in tort.”

Ultimately, the 5th Circuit said it found “ample evidence” indicating the public policy character of the various decisions the Corps made regarding the MRGO and maintenance of the levees that failed to protect property damaged by Katrina. The 5th Circuit stated:

“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 Corps’s actual reasons for the delay are varied and sometimes unknown, but there can be little dispute that the decisions here were susceptible to policy considerations. Whatever the actual reasons for the delay, the Corps’s failure to armor timely Reach 2 is shielded by the DFE.”

Read the 5th Circuit opinion, In Re: Katrina Canal Breaches Litigation.