In re Katrina Canal Breaches Litigation

Citing the Fifth Circuit's 2012 opinion, the district court granted the government's motion to dismiss claims arising from the failure of "outfall canals" for lack of subject matter jurisdiction due to the government's immunity under the Flood Control Act of 1928. The court also rejected the arguments of plaintiffs who tried to distinguish their claims arising from allegedly improper maintenance of the Mississippi River Gulf Outlet (MRGO) from claims that the Fifth Circuit found were subject to discretionary-function exception to the Federal Tort Claims Act. The plaintiffs said their claims were different because they concerned allegedly negligently performed maintenance dredging, not foreshore protection. The district court said the Fifth Circuit had made "abundantly clear" that "whatever the United States did or did not do to address the ever-expanding width of the MRGO was subject to a policy decision and thus shield by the discretionary function." The court said the allegedly improper dredging therefore was protected.

The district court found that the U.S. Army Corps of Engineers' supervision of a remediation project executed by Washington Group International, Inc. along the East Bank Industrial Area (EBIA) did not substantially cause breaches in the EBIA floodwall. The court noted that the Corps would be absolutely immune for any improper design of the levee. The court wrote: "I feel obligated to note that the bureaucratic behemoth that is the Army Corps of Engineers is virtually unaccountable to the citizens it protects despite the Federal Tort Claims Act. The public fisc will very possibly be more jeopardized by a lack of accountability than a rare judgment granting relief. The untold billions of dollars of damage incurred by the Greater New Orleans area as a result of the [Lake Pontchartrain and Vicinity Hurricane Protection Plan] levee failures during Katrina speak eloquently to that point."