New Ruling on Katrina Favors Corps of Engineers (Published 2012)

A federal appeals court reversed itself, ruling Monday that the Army Corps of Engineers is not liable for devastation caused in Hurricane Katrina from a government-built navigation canal.

The Court of Appeals for the Fifth Circuit ruled that the government is immune from lawsuits for decisions made by the corps that might have left the 76-mile channel, the Mississippi River-Gulf Outlet or MR-GO, vulnerable.

“MR-GO’s size and configuration greatly aggravated the storm’s effects on the city and its environs,” wrote Judge Jerry E. Smith, writing for a three-judge panel, adding that the federal tort claims act “completely insulates the government from liability.”

In March, the same panel had ruled that the government was liable for some of the flooding, affirming a landmark ruling by Judge Stanwood Duval Jr. of federal District Court in 2009.

While the government is generally immune from flooding claims resulting from failures of flood control projects, Judge Duval ruled that damage related to the MR-GO canal was different because its purpose was navigation, not flood protection, even though it was lined with levees. The government appealed the decision, asking the full circuit to rehear the case. Instead, the three-judge panel on Monday withdrew the earlier decision and substituted a new one that cited the “discretionary-function exception” to the tort claims act.

Joseph Bruno, a lawyer in New Orleans who represents plaintiffs, called the decision “devastating. I’m just amazed that the same three-judge panel that affirmed did an abrupt about-face and gave the corps a pass.”

“We will continue to press the case,” Mr. Bruno said. It is unclear whether that will mean asking the full circuit court to reconsider the case or making an appeal to the Supreme Court.

“Katrina victims have been thrown a lot of curveballs,” said Pierce O’Donnell, a lawyer for plaintiffs in the case.