Army Corps not liable for Katrina damage, appeals panel finds

Survivors seeking damages from the federal government are feeling “enormous disappointment” in Monday's decision, says Ms. Rosenthal. “They lost a lot more than just items; many lost family members. There is the feeling of absolute nausea, of feeling punched in the stomach.” 

Several post-Katrina studies have concluded that engineering, design, and mechanical problems were largely to blame for the two main breach sites.

A November 2005 report jointly published by the University of California at Berkeley and the American Society of Civil Engineers found that the levees failed as a result of several factors, including the instability of certain floodwalls, differences in height between adjacent wall sections, and “considerable erosional distress” in transitional sections between earthen and concrete levees.

Another report commissioned by the Louisiana Department of Transportation and Development, published in December 2006, concluded that “Katrina was largely a man-made catastrophe” and criticized the corps for various shortcomings. "There was inadequate recognition of the primary contributors to the likelihoods and consequences of catastrophic flooding," the report stated. "Sufficient defensive measures to counteract and mitigate these uncertainties were not used.”

The corps, however, disputes some of those claims, saying that a federal court decision in January 2008 exempted the US government of all liability for the disaster. Had the case proceeded, the corps also said it was prepared to offer expert testimony that would contradict some conclusions of those reports.

The 2008 court decision cited a 1928 law that gives the corps immunity for damages that result from a flood-protection project. However, the ruling of immunity did not cover some damage claims pertaining to the Mississippi River-Gulf Outlet, a corps-built and corps-maintained navigation channel known as MR-GO located on the city’s east side. Litigation stemming from flooding that occurred when water surged through MR-GO was the subject of Monday's decision.

This same three-judge panel initially ruled in March that the government was liable for some damages, as did the lower court ruling by Judge Stanwood Duval Jr. in November 2009, which had awarded $720,000 to the residents. After the corps appealed to the full Fifth Circuit Court, the panel withdrew its decision and ruled in the agency’s favor.

Plaintiffs are expected to appeal the ruling to the full Fifth Circuit court, and both sides have said they intend to fight this case all the way to the US Supreme Court. 

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