Robinson v. United States (In re Katrina Canal Breaches Litig.)

• Decision Date: 24 September 2012
• Docket Number: 10–31054 and 11–30808.,Nos. 10–30249,s. 10–30249
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: In re KATRINA CANAL BREACHES LITIGATION. Norman Robinson; Kent Lattimore; Lattimore & Associates; Tanya Smith, Plaintiffs–Appellees–Cross–Appellants, v. United States of America, Defendant–Appellant–Cross–Appellee. Monica Robinson, Plaintiff–Appellee–Cross–Appellant, v. United States of America, Defendant–Appellant–Cross–Appellee. In re Katrina Canal Breaches Litigation. In re Katrina Canal Breaches Litigation. United States of America, on Behalf of United States Army Corps of Engineers, Petitioner.

696 F.3d 436

In re KATRINA CANAL BREACHES LITIGATION.

Norman Robinson; Kent Lattimore; Lattimore & Associates; Tanya Smith, Plaintiffs–Appellees–Cross–Appellants,

v.United States of America, Defendant–Appellant–Cross–Appellee.

Monica Robinson, Plaintiff–Appellee–Cross–Appellant,

v.United States of America, Defendant–Appellant–Cross–Appellee.

In re Katrina Canal Breaches Litigation.

In re Katrina Canal Breaches Litigation.

United States of America, on Behalf of United States Army Corps of Engineers, Petitioner.

Nos. 10–30249, 10–31054 and 11–30808.

United States Court of Appeals, Fifth Circuit.

Sept. 24, 2012.

Joseph M. Bruno (argued), Bruno & Bruno, L.L.P., Jonathan Beauregard Andry, Andry Law Firm, Lewis Scott Joanen, Frank Jacob D'Amico, Jr., Richard Michael Exnicios, Law Offices of Richard M. Exnicios, Gerald Edward Meunier, Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C., Camilo Kossy Salas, III, Salas & Co., L.C., David S. Scalia, Scalia Law Firm, New Orleans, LA, Joseph W. Cotchett, Philip L. Gregory, Joseph C. Wilson, Cotchett, Pitre & McCarthy, Burlingame, CA, Walter Clayton Dumas, Sr. Atty., Dumas Law Firm, L.L.C., Joseph J. McKernan, McKernan Law Firm, Michael Carter Palmintier, Trial Atty., deGravelles, Palmintier, Holthaus & Frugé, L.L.P., John Bettes Dunlap, III, Dunlap Fiore, L.L.C., Baton Rouge, LA, Norval Francis Elliot, III, N. Frank Elliot III, L.L.C., Lake Charles, LA, Calvin Clifford Fayard, Jr., Sr. Trial Atty., Fayard & Honeycutt, A.P.C., Denham Springs, LA, Nina D. Froeschle, Pierce O'Donnell (argued), Andrew Patrick Owen, Trial Law Firm, P.C., Thomas V. Girardi, Girardi & Keese, Los Angeles, CA, Henry Clay Mitchell, Jr., Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, Pensacola, FL, Drew A. Ranier, Ranier, Gayle & Elliot, Lake Charles, LA, Brent M. Rosenthal, Rosenthal Pennington, L.L.P., Sherri Ann Saucer (argued), Baron & Budd, P.C., Dallas, TX, James Parkerson Roy, Elwood Clement Stevens, Jr., Bob F. Wright, Domengeaux, Wright, Roy & Edwards, Lafayette, LA, Matthew D. Schultz, Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, Pensacola, FL, for Plaintiffs–Appellees Cross–Appellants in No. 10–30249.

Mark Bernard Stern (argued), Alisa Beth Klein, Daniel Joseph Lenerz, Abby Christine Wright, U.S. Dept. of Justice, Civ. Div., App. Staff, Lindsey E. Powell, U.S. Dept. of Justice, Robin D. Smith, U.S. Dept. of Justice, Civ. Div., Washington, DC, for United States of America.

James Bryan Mullaly, City Atty.'s Office for the City of New Orleans, New Orleans, LA, Michael K. Kellogg, Scott Harris Angstreich (argued), Andrew S. Oldham, Dep. Sol. Gen., Kellogg Huber Hansen, Washington, DC, James M. Garner (argued), John Thomas Balhoff, II, Ashley Gremillion Coker, Sher, Garner, Cahill, Richter, Klein & Hilbert, L.L.C., Ewell Elton Eagan, Jr. (argued), Gordon, Arata, McCollam, Duplantis & Eagan, L.L.P., Wendy Hickok Robinson, Entergy Services, Inc., New Orleans, LA, James David Caldwell, Office of the Atty. Gen., for the State of Louisiana, Baton Rouge, LA, Richard Alvin Tonry, Tonry & Ginart, Chalmette, LA, Elisa Tara Gilbert, Brendan Regis O'Brien, Gilbert Firm, New York City, for City of New Orleans, AT&T Entities, State of Louisiana, Parish of St. Bernard, Rain CII Carbon, L.L.C., Universal Health Services, Inc., Amy Huey, Virginia Burdette, Chapter 7 Trustee of the Estate of Quintessa Huey and Caryn L. Fong, Certain Members of the MRGO Must Go Coalition, James Wilkins, Coalition to Restore Coastal Louisiana, Holy Cross Neighborhood Assoc., Lower Ninth Ward Center for Sustainable Engagement and Development, MQVN Community Development Corp., Entergy Louisiana, L.L.C., Entergy New Orleans Inc., Hartford Steam Boiler Inspection & Ins. Co., Amici Curiae.

Joseph M. Bruno, Bruno & Bruno, L.L.P., Michael Warren Hill, Gerald Edward Meunier, Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C., New Orleans, LA, for Plaintiffs–Appellants in No. 10–31054.

Joseph M. Bruno, Bruno & Bruno, L.L.P., New Orleans, LA, Andrew Patrick Owen, Trial Law Firm, P.C., Los Angeles, CA, James Parkerson Roy, Domengeaux, Wright, Roy & Edwards, Lafayette, LA, Sherri Ann Saucer, Baron & Budd, P.C., Dallas, TX, for Plaintiffs–Respondents in No. 11–30808.

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

Before SMITH, PRADO and ELROD, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Treating the petition for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is GRANTED. We withdraw our opinion, In re Katrina Canal Breaches Litig., 673 F.3d 381 (5th Cir.2012), and substitute the following:

Decades ago, the Army Corps of Engineers (the “Corps”) dredged the Mississippi River Gulf Outlet (“MRGO”), a shipping channel between New Orleans and the Gulf of Mexico, and levees alongside the channel and around the city. When Hurricane Katrina struck in 2005, MRGO's size and configuration greatly aggravated the storm's effects on the city and its environs.

Claimants alleging damage from Katrina filed hundreds of lawsuits, many of which were consolidated before the district judge a quo. That court worked with plaintiffs' litigation committees to identify several categories of plaintiffs and individual “bellwether” plaintiffs. This opinion concerns three groups of bellwether plaintiffs, all suing the United States for flood damages. One group of seven plaintiffs went to trial; three prevailed on all claims, and four did not. Another group was dismissed before trial when the government was found immune. The third has survived motions to dismiss and is proceeding to trial.

All losing parties have appealed; the government has also petitioned for a writ of mandamus to stay the third group's trial pending issuance of this opinion. We REVERSE each judgment for the plaintiffs, AFFIRM each judgment for the government, and DENY the petition as moot.

I. Background.

In 1943, Congress requested a report from the Chief of Engineers, Secretary of the Army, investigating ways to make the Port of New Orleans more accessible for maritime and military use. That request led to the authorization of MRGO in 1956. The channel was built to its full dimensions by 1968 and afforded a shorter shipping route between the Gulf of Mexico and New Orleans. As the district court noted, the channel, as originally designed, “was to be 36 feet deep and 500 feet wide, increasing at the Gulf of Mexico to 38 feet deep and 600 feet wide.” In re Katrina Canal Breaches Consol. Litig., 647 F.Supp.2d 644, 717 (E.D.La.2009). MRGO was cut through virgin coastal wetlands at a depth that exposed strata of so-called “fat clay,” a form of soil soft enough that it will move if made to bear a load. The channel's original designers considered and rejected armoring its banks with foreshore protection, leaving them vulnerable to erosion.

During the design and construction of MRGO, the Corps also implemented the Lake Pontchartrain and Vicinity Hurricane Protection Plan (“LPV”). Pursuant to that plan, the Corps constructed, inter alia, the New Orleans East Unit, levees protecting New Orleans East; the Chalmette Area Unit, levees protecting the Ninth Ward and St. Bernard Parish; and higher floodwalls in the outfall canals at 17th Street, Orleans Avenue, and London Avenue. Separately from MRGO, between 1967 and 1985 the Corps also “lifted” and enlarged portions of the levee paralleling Reach 2 of the channel.

Reach 2 of MRGO runs southeasterly from a point near Michoud in eastern New Orleans along the south shore of Lake Borgne and through the marshes to and across Chandeleur Sound to the Gulf of Mexico. Its south shore parallels the Reach 2 levee (later breached during Katrina, resulting in massive flooding). Foreshore protection was authorized for that shore in 1967 and costs charged to the MRGO project in 1968. From 1968 until 1980, it is not evident why the protection was not implemented. In March 1980, the Corps scrapped its original design for further study, which it continued for the next two years. In 1982, it began testing foreshore protection along the south shore; the study was completed in early 1983. A contract was awarded in 1985, and the foreshore protection was finished in 1986.

For the north shore of Reach 2—that shore which abuts Lake Borgne and its wetlands—the district court found that, by the early 1970s, erosion of the channel had threatened the wetlands, in particular the land bridge that prevented Lake Borgne from flowing directly into the MRGO. In the early 1980s, the Corps was directed to study the feasibility of protection along the north shore. In 1984 and 1988, the Corps reported studies recognizing that erosion from wave wash had widened the channel and that the north shore was close to being breached, thereby exposing development and inhabitants to the southwest to hurricanes from Lake Borgne.

The Corps outlined two erosion-control plans in the 1984 report. The 1988 report concluded that the bank-erosion problem threatened to increase dredging costs sixfold, a problem Corps engineers with the New Orleans Division attempted to address via a supplement to MRGO's Design Memorandum, which would encompass further studies and bypass any requirements for local cost-sharing. That attempt was rejected by the Lower Mississippi Valley Division, which criticized the modeling used and the estimated costs of dredging.

The Corps took the position that design modification was not warranted under the cost-benefit ratio: “[U]ntil the cost of providing foreshore protection proved to be less expensive than the continued need for dredging to maintain the channel's navigability, the Corps did not actively pursue funding for this protection.” Id. at 662. The Corps refused to undertake the cost of foreshore protection unless there was local cost participation under the Water Resources Development Act, 33 U.S.C. § 2201 et seq. Furthermore, the district court noted, the Corps did not...