Graci v. United States

• Decision Date: 27 June 1969
• Docket Number: Civ. A. No. 15962,15976,16091.
• Citation: 301 F. Supp. 947
• Parties: Benjamin T. GRACI, Jr. (Appearing herein for himself and on behalf of all other persons similarly situated) v. UNITED STATES of America. Philip C. CIACCIO (Appearing herein for himself and on behalf of all other persons similarly situated) v. UNITED STATES of America. Emanuel REID, Jr. (Appearing herein for himself and on behalf of all other persons similarly situated) v. UNITED STATES of America.
• Court: U.S. District Court — Eastern District of Louisiana

301 F. Supp. 947

Benjamin T. GRACI, Jr. (Appearing herein for himself and on behalf of all other persons similarly situated) v. UNITED STATES of America.

Philip C. CIACCIO (Appearing herein for himself and on behalf of all other persons similarly situated) v. UNITED STATES of America.

Emanuel REID, Jr. (Appearing herein for himself and on behalf of all other persons similarly situated) v. UNITED STATES of America.

Civ. A. Nos. 15962, 15976, 16091.

United States District Court E. D. Louisiana, New Orleans Division.

June 27, 1969.

Jerald N. Andry, G. Gilbert V. Andry, III, Gibson Tucker, Jr., Tucker & Schonekas, New Orleans, La., for plaintiff Graci.

Joseph J. Laura, Jr., Ignatz G. Kiefer, New Orleans, La., for plaintiff Ciaccio.

Charles G. Jacques, Jr., Benjamin J. Birdsall, Jr., James F. Mulla, Jr., New Orleans, La., for plaintiff Reid.

Gene S. Palmisano, Fritz Veters, Asst. U. S. Attys., New Orleans, La., for the United States.

HEEBE, District Judge:

We are presented with the novel question of whether the immunity clause contained in § 3 of the Flood Control Act of 1928, 33 U.S.C. § 702c,¹ applies to actions for floodwater damage allegedly occasioned by the negligence of the government in the construction of a navigation aid project.

The issue is raised by way of a motion by the government for a rehearing of the court's previous ruling, through Judge Christenberry of this district, denying a motion to dismiss. The original motion was based on three separate grounds, and was denied by Judge Christenberry as to all three. The present motion seeks a rehearing of the previous ruling only with respect to the court's holding that these actions are not barred by the immunity provision of § 3 of the Act.²

These three consolidated cases are suits for property damage and related injuries affecting the various plaintiffs occasioned by the encroachment of stormdriven waters upon their properties during Hurricane "Betsy" on September 17, 1965. Complainants charge that the flooding of their homes resulted from the overflowing and breakage of the Mississippi River-Gulf Outlet, a deep-water channel running through the lower extremities of the parishes of St. Bernard and Plaquemines, Louisiana,³ and that the breakage was due to the negligent construction of the channel by the United States Corps of Engineers. Judge Christenberry held that the Mississippi River-Gulf Outlet was not a flood control project but a navigation aid project and that § 3 did not bar suits against the government for floodwater damage resulting from the government's negligence unconnected with flood control projects. The government admits the Outlet is a "navigation aid" and not a flood control project, but disputes the court's interpretation of § 3.

The government purports to base its motion for rehearing solely on the recent case of Parks v. United States, 370 F.2d 92 (2d Cir. 1966), which was rendered subsequent to the court's ruling on the original motion to dismiss. As we interpret the government's motion, however, it is based further on the proposition that the original denial of the motion to dismiss was contrary to the law at the time of the original ruling. As we read Parks, it added nothing new to the law pertinent to this case. The case did not involve a navigation aid project, but only reiterated the holdings of previous cases, applying the § 3 immunity in a situation involving a flood control project. Moreover, the Parks case was rendered on December 20, 1966, subsequent to the court's denial of the motion to dismiss but prior to the court's opinion in support of denial rendered June 13, 1967. In its memorandum, and at oral argument, the government in fact did not rely on Parks as a change in the law, but merely as a reiteration of settled principles. The real thrust of the present motion, therefore, is that the denial of the motion to dismiss, with respect to the court's interpretation of § 3, was ill-founded and should now be reconsidered.

We dispense at once with the contention of counsel for plaintiff in Civil Action 15962 that this motion for rehearing is equivalent to a motion for a new trial and therefore governed by the time limits of Rule 59(b), F.R.Civ.P. The motion for new trial is, more often than not, an anticlimactic appearance before the trial court prior to the instigation of the appellate processes. Time is then of the essence, for the protection of the rights of other parties. But a motion addressed to the trial court for a reconsideration of an interlocutory order is proper at any time prior to the final determination of the merits.

Although the considerations for the granting of a motion for rehearing may be different from those pertaining to a decision on the merits of the matter once it has been reheard, the prime consideration in the granting of the rehearing is always a strong possibility that the original determination may have been, or may have become, incorrect. Here, the government's request for rehearing is based, not on any change in the law, but on the alleged impropriety of Judge Christenberry's original ruling. Although we might be inclined in other circumstances to grant a rehearing on a showing of the possibility of error in the original determination and the need for further argument on the merits, we see no reason to do so where we have had the opportunity for thorough consideration, with the aid of extensive memoranda and arguments of counsel, and find ourselves in accord with the determination of the merits of the original motion.

In considering the merits of the government's original motion to dismiss, we are not hampered by the apprehension that we are "bound" by Judge Christenberry's determination. As a matter of deference and respect, we would seriously hesitate to overturn any ruling of our respected contemporary. Moreover, in view of the recent general reallotment of cases in this district, we deem it necessary to carefully consider requests for the rehearing of any matter previously passed on by another judge of this district prior to the general reallotment; to refer the case back to the original judge in each and every instance in which a rehearing of an interlocutory decision is requested, as suggested by the Third Circuit in United States v. Wheeler, 256 F.2d 745 (1958), would drastically confuse the court's docket, and the wholesale reconsideration of previous orders merely on the basis of unwarranted motions for rehearing would, in the situation now prevailing, have the same result. But we do not read the law in this circuit as prohibiting all reconsiderations of issues passed on by our fellow judges. The matter is one within "the sound discretion of a trial judge conducting his court in the interest of furthering the administration of justice." United States v. Koenig, 290 F.2d 166, 172 (5th Cir. 1961), cited by ACF Industries, Inc. v. Guinn, 384 F.2d 15 (5th Cir. 1967), cert. den. 390 U.S. 949, 88 S.Ct. 1039, 19 L.Ed.2d 1140 (1968).

The situation prevailing in this district due to the general reallotment may well have an influence on the exercise of "the sound discretion" of each judge, but the usual factors must still play the major part in the decision. Certainly, a single judge is not prevented by "the law of the case" from overruling his own interlocutory decisions if he later finds them to have been incorrect. See Jaros v. State Farm Mutual Automobile Insurance Co., 261 F.Supp. 315 (E.D.La. 1966). And where another consideration of the merits is warranted, we feel free to undertake it within the bounds of proper discretion without considering ourselves irrevocably bound to the prior determination.

Turning, then, to the merits of the government's original motion, we find that these tort actions are maintainable against the government under the provisions of the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., and that § 3 of the Flood Control Act of 1928, 33 U.S.C. § 702c, does not necessarily override the Federal Tort Claims Act's waiver of immunity in the particular circumstances of this case. The extent of our holding is only to deny the government's motion to dismiss on the basis of § 3; we refrain from offering any impression as to the merits of the plaintiffs' actions.

Contrary to the usually narrow approach to statutory waivers of the sovereign immunity, see United States v. M/V Pitcairn, 272 F.Supp. 518, 522 (E.D.La.1967), the Federal Tort Claims Act has received a very liberal construction in this circuit,⁴ consistent with the salutary Congressional policy determination to make the United States liable in tort to persons who have been injured by the negligent or wrongful acts of its employees within the general coverage of the Act, in the same respect as any private person. Cf. United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951). Whatever may have been the more immediate pragmatic motives for its passage, they do not detract from the Act's progressive purpose.⁵

National Manufacturing Co. v. United States, 210 F.2d 263 (8th Cir. 1954), the landmark decision in the history of § 3, first upheld the vitality of the immunity provision of § 3 in the face of the broad waiver provisions of the Federal Tort Claims Act. The court found in § 3 the expression of a settled public policy aligned with the sovereign immunity principle, which barred all claims against the United States for floodwater damage. The court stated generally "a long settled public policy is not to be overriden by the general terms of a statute which does not show with certainty a legislative intent to depart from that policy," 210 F.2d at 274, and in particular, that "* * * it should not lightly be assumed that the fundamental policy of § 3 was reversed by mere implication * * *" of the Federal Tort Claims Act. Ibid.

Notwithstanding the validity of such general statements, we think a great deal depends upon the extent of the policy in question, and its...