By: Willis Hon
22nd April, 2013
The Fifth Circuit Court of Appeals recently reversed an earlier ruling by holding that the Army Corp of Engineers (“the Corps”) is not liable for damages against private individuals arising out of the Corps’s management of a shipping canal called the Mississippi River Gulf Outlet (“MRGO”) during and after Hurricane Katrina in 2005. This unusual move by the three-judge panel reverses some of the liability issues that may have arisen from its initial ruling. Although the same three-judge panel wrote the new opinion, little is known about why the panel has reversed itself. This surprising turn-around, which happened over the course of a mere six months, can be explained as an attempt by the panel to bring its opinion back into consistency with the Fifth Circuit’s case law around the Federal Tort Claims Act (“FTCA”).
This Field Report provides background on the MRGO and its role in Hurricane Katrina’s impact on the Gulf region, the subsequent district court litigation, and compares the initial Fifth Circuit ruling with the panel’s current ruling on the case. Although the reasons why the Fifth Circuit withdrew its initial ruling may never be known beyond the walls of the judges’ chambers, a comparison of the two rulings suggests that there was a change from emphasis on what the Corps actually did to an emphasis on the nature of the decision the Corps had to make. This revised opinion brings the Fifth Circuit back in line with its other decisions requiring the government merely to show that “the acts or omissions that form the basis of the suit are susceptible to a policy-driven analysis, not whether they were the end product of a policy-driven analysis.