By Nate Raymond
Sept 25 (Reuters) - A U.S. appeals court has reversed itself
and found that the Army Corps of Engineers cannot be held liable
in property owners' lawsuits over flood damage during Hurricane
Katrina.
More than 400 property owners had filed lawsuits after the
August 2005 hurricane, many targeting the Corps of Engineers.
The plaintiffs had said the Corps of Engineers had delayed
armoring the Mississippi River-Gulf Outlet shipping channel
against flood damage due to incorrect scientific decisions
rather than public policy considerations.
In an unusual move, a three-judge panel of the 5th U.S.
Circuit Court of Appeals in New Orleans on Monday withdrew its
earlier ruling in March that had been in the plaintiffs' favor.
Monday's ruling came after the federal government sought review
of the panel's earlier decision by the full appeals court.
Judge Jerry Smith, writing for the court, said the Corps of
Engineers was immune from being held liable for property damage
under the "discretionary function exception" to the Federal Tort
Claims Act, which governs litigation against the U.S.
government.
The exception bars lawsuits against the government for
conduct arising from statutes and regulations that do not
require an agency's action but involve its discretion.
The 5th Circuit decision reverses a 2009 ruling by U.S.
District Judge Stanwood Duval Jr. in New Orleans, who found that
the federal government did not have immunity from lawsuits
arising out of Katrina's flood damage in 2005.
New Orleans is still struggling to recover completely from
the devastation of Katrina, which swept across the city on Aug.
29, 2005, killing more than 1,800 people and causing billions of
dollars of damage along the coast.
Joseph Bruno, a lawyer for the plaintiffs, said in an email
that his clients were "devastated."
"The fact that the judges reversed themselves deserves an
explanation," he said. "The decision is a slap in the face of
the people devastated by the Corps' gross negligence and an
endorsement to the Corps to continue to put considerations of
costs ahead of safety."
Major Jenny Willis, a spokeswoman for the Corps of
Engineers, said it was "analyzing the decision in anticipation
that litigation will continue."
The case is In re: Katrina Canal Breaches Litigation, 5th
U.S. Circuit Court of Appeals, 10-30249.
For the plaintiffs: Joseph Bruno, Bruno & Bruno.
For the United States: Mark Stern, Department of Justice.
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