556 F.3d 326 (5th Cir. 2009), 07-31066, Freeman v. United States

Docket Nº:07-31066.
Citation:556 F.3d 326
Party Name:Herbert FREEMAN, Jr., Individually and in his capacity as representative of the estate of Ethel Freeman, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Barbara Eleby Lee; Brenda Bissant; Glenda Eleby; Griffin Eleby, Jr.; Rosalie Brooks; Dorothy Beal; Earline Coleman; Ethel Jackson; Nancy Eleby, Plaintiffs-Appellants, v. Unite
Case Date:January 22, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 326

556 F.3d 326 (5th Cir. 2009)

Herbert FREEMAN, Jr., Individually and in his capacity as representative of the estate of Ethel Freeman, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

Barbara Eleby Lee; Brenda Bissant; Glenda Eleby; Griffin Eleby, Jr.; Rosalie Brooks; Dorothy Beal; Earline Coleman; Ethel Jackson; Nancy Eleby, Plaintiffs-Appellants,

v.

United States of America, Defendant-Appellee.

Frances Lodriguss, Plaintiff-Appellant,

v.

United States of America, Defendant-Appellee.

Barbara Eleby Lee; Brenda Bissant; Glenda Eleby; Griffin Eleby, Jr.; Rosalie Brooks; Dorothy Beal; Rodney Jackson, for the Estate of Ethel Jackson; Nancy Eleby, Plaintiff-Appellants,

v.

United States of America, Defendant-Appellee.

No. 07-31066.

United States Court of Appeals, Fifth Circuit.

January 22, 2009

Page 327

[Copyrighted Material Omitted]

Page 328

Frank A. Silvestri (argued), Silvestri & Massicot, Peter Denis Derbes, New Orleans, LA, for Plaintiffs-Appellants.

Peter M. Mansfield (argued), Thomas Landers Watson and Stephen A Higginson, Asst. U.S. Attys., New Orleans, LA, for U.S.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before KING, DeMOSS and PRADO, Circuit Judges.

KING, Circuit Judge:

We are asked whether the discretionary function exception of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5148, bars a suit based on the federal government's handling of relief efforts in the aftermath of Hurricane Katrina. Plaintiffs allege that the federal government's violations of various provisions of the National Response Plan render the United States liable under the Federal Tort Claims Act, 28 U.S.C. § § 1346, 2671-2680, for the deaths of Ethel Freeman, John J. DeLuca, and Clementine Eleby. The district court held that the conduct at issue was vested in the government's discretion. It therefore dismissed plaintiffs' claims for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure because the United States had not waived sovereign immunity for its discretionary acts. We affirm.

I. FACTUAL, PROCEDURAL, AND REGULATORY BACKGROUND

A. Factual and Regulatory Background

Plaintiffs are the relatives or representatives of Ethel Freeman, John J. DeLuca, and Clementine Eleby (" decedents" ). Because of impaired mobility, decedents stayed in New Orleans when Hurricane Katrina made landfall near the city on August 29, 2005. After three distinct travails, Ms. Freeman, Mr. DeLuca, and Ms. Eleby died in the subsequent days. The nation witnessed these tragedies unfold many times over.

Ms. Freeman died on Wednesday, September 1, 2005, at the New Orleans Convention Center. She was chronically ill and decided to stay in her home when Hurricane Katrina came ashore. After

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waters from Lake Pontchartrain breached the Industrial Canal, 17th Street flood walls, and London Avenue flood walls, water flooded her home to a depth of several feet. On August 31, 2005, Ms. Freeman's son, Herbert Freeman, Jr. (" Herbert" ), borrowed a boat from a friend, placed Ms. Freeman in her wheelchair, and then moved her into the boat. Herbert then shuttled Ms. Freeman to higher ground. Once the Freemans reached dry land, New Orleans police officers directed them to the Convention Center. At the Convention Center, Herbert notified police officers that Ms. Freeman needed medical attention. The officers told him a bus would come to evacuate Ms. Freeman. Squalid conditions existed at the Convention Center, and it was not equipped with food, water, medical assistance, triage, or transportation. Ms. Freeman died the day after she arrived there. An image of her blanket-covered body was broadcast on national television.

Ms. Eleby also died at the Convention Center on September 1, 2005. Because she was bedridden, a physician advised her to evacuate to a local hospital as the hurricane approached. Ms. Eleby's caretaker, Barbara Eleby Lee, contacted officials to inquire about taking Ms. Eleby to the Superdome, but she was informed that no beds would be provided. There was also a dearth of available beds at local hospitals. As a result, Ms. Eleby stayed at her residence with Barbara Eleby Lee and other members of her family. The storm trapped them in their home. On August 30, 2005, first responders arrived by boat. Rescuers in the first boat to approach offered to take Ms. Eleby's family if they left her behind; the potential rescuers did not want to take her because she was paralyzed and bedridden. Her family refused, and when a second boat approached, they placed her in it first. That boat delivered them to Chef Menteur Highway, where they spent the night without food, water, shelter, or medical care. The next day, Ms. Eleby's family carried her to an interstate highway, where rescuers in a large truck picked them up and transported them to the Convention Center. At the Convention Center, Ms. Eleby experienced the same squalid conditions as did Ms. Freeman. As noted above, the Convention Center was not equipped with food, water, medical assistance, triage, or transportation. Ms. Eleby died at the Convention Center the following day.

Mr. DeLuca died at Louis Armstrong International Airport on September 3, 2005. Before the storm, Mr. DeLuca resided in the Nazareth Inn, an independent and assisted living facility in eastern New Orleans. After Hurricane Katrina came ashore, flood waters surrounded and flooded the facility. A helicopter crew rescued Mr. DeLuca and delivered him to the Pontchartrain Center in Kenner, Louisiana. When the Pontchartrain Center also flooded, another helicopter transferred him to the interchange of Interstate 10 and Causeway Boulevard (the " Cloverleaf" ). He arrived there on August 30, 2005. The Cloverleaf was not equipped with food, water, shelter, medical assistance, triage, or transportation. Although evacuation buses began to arrive on August 31, 2005, Mr. DeLuca was not evacuated. Still on the Cloverleaf on September 2, 2005, Mr. DeLuca collapsed from stress, heat exhaustion, hunger, and dehydration. A helicopter airlifted him to the airport. Mr. DeLuca died there the next day.

Plaintiffs in this case allege that the federal government caused or contributed to these deaths by negligently failing to perform nondiscretionary duties arising under the National Response Plan (the

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" NRP" ).1 Pursuant to authority granted in part by the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § § 5121-5208, the President directed the Secretary of the Department of Homeland Security (" DHS" ) to develop the NRP. See Homeland Security Presidential Directive/HSPD-5, 2003 WL 604606, at *1 (Feb. 28, 2003). The directive tasked DHS with promulgating the NRP in order to " integrate Federal Government domestic prevention, preparedness, response, and recovery plans into one all-discipline, all hazards plan" and " provide the structure and mechanisms for national level policy and operational direction for Federal support to State and local incident managers and for exercising direct Federal authorities and responsibilities." Id. at *4.

DHS Secretary Michael Chertoff released the NRP in December 2004. The NRP " establishe[d] a single, comprehensive framework for the management of domestic incidents." Dep't of Homeland Sec., Nat'l Response Plan iii (2004). It was organized into a Base Plan supplemented by annexes categorized into three groups: Emergency Support Function (" ESF" ) (corresponding to types of operational responses); Support (corresponding to organizational activities); and Incident (corresponding to types of emergencies that require " specialized, incident-specific implementation" ). Id. at xii.

The Catastrophic Incident Annex (the " Annex" ), a Support annex, contained the provisions of the NRP at issue in this case. The Annex was " applicable for all hazards." Id. at INC-i. It " establishe[d] the context and overarching strategy for implementing and coordinating an accelerated, proactive national response to a catastrophic incident," defined as " any natural or manmade incident, including terrorism, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the population, infrastructure, environment, economy, national morale, and/or government functions." Id. at CAT-1. The Annex also noted that " [a] more detailed and operationally specific NRP Catastrophic Incident Supplement (NRP-CIS) that is designated ‘ For Official Use Only’ will be approved and published independently of the NRP Base Plan and annexes." Id. at CAT-1; see also id. at CAT-5. The Base Plan required the DHS Secretary to " [i]dentify appropriate assets and establish agreements and procedures for their rapid deployment and employment in accordance with the NRP Catastrophic Incident Supplement" within 120 days of issuance of the NRP. Id. at ix. Plaintiffs allege that Secretary Chertoff completed this task on September 6, 2005.

The Annex described certain situational difficulties that arise in catastrophic incidents. For example, during catastrophes, " [t]here is a significant need for public health and medical support, including mental health services." Id. at CAT-2. Therefore, " [m]edical support is required not only at medical facilities, but at casualty evacuation points, evacuee and refugee points and shelters, and at other locations to support field operations." Id. The Annex similarly documented " Planning Assumptions." One such assumption stated: " Federal support must be provided in a timely manner to save lives, prevent human suffering, and mitigate severe damage. This may require mobilizing and deploying assets before...

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