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Fifth Circuit reverses self in Katrina case against army engineers

By John O'Brien | Sep 25, 2012


NEW ORLEANS (Legal Newsline) - The U.S. Court of Appeals for the Fifth Circuit has reversed itself in a Hurricane Katrina case over the liability of the U.S. Army Corps of Engineers.

Monday, the Fifth Circuit withdrew its earlier opinion in the case and substituted a new one that says the army engineers can't be held liable in property owners' lawsuits. The army engineers are entitled to immunity from such suits, the court ruled.

The army engineers were alleged to have increased the width Mississippi River Gulf Outlet and delayed armoring it, allowing wave wash from ships' wakes to erode the channel. This allowed Katrina to generate a storm surge capable of breaching the Reach 2 levee, the plaintiffs claimed.

The Fifth Circuit ruled the discretionary function exception to the Federal Tort Claims Act gives the army engineers immunity. The DFE bars claims "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 of the government, whether or not the discretion involved be abused."

Judge Jerry Smith wrote in a footnote in the opinion that the MRGO eventually reached an average width of 1,970 feet, more than three times its authorized width.

The opinion reverses one the Fifth Circuit issued in March and a lower court ruling from 2009.

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