Can someone please explain to me how sovereign immunity doesn’t protect the Army Corps of Engineers from just such suits as these:
New Orleans has filed a claim for $77bn (£40bn) in damages against the US army corps of engineers for building levees incapable of withstanding Hurricane Katrina, leading to the devastation of large parts of the city.
The city council met Thursday night’s deadline to file the suit, which allows it to sue the engineering corps at a later date. It is thought that up to 30,000 individual claims could also be made against the corps. According to the daily New Orleans Times-Picayune, potential claimants descended on the corps’s New Orleans office in their tens of thousands. The city’s bankrupt energy board and water and sewerage agency are between them suing for more than $1bn.
Because Congress, in its bountiful generosity, believes that money grows on trees and that their constituents deserve a big apple pie?
The government is not totally immune to suits, particularly civil (i.e., ‘give me the money’) suits. Unfortunately, there’s long court precedent here. I’m not saying the suits will be easy or that the plaintiffs will win. But the suits will be heard.
The U.S. government waives sovereign immunity with numerous exceptions, so the lawsuit can be pursued as long as the plaintiffs don’t fall within any of those exceptions.
The Corps can’t be sued for flooding caused by flood prevention projects, but the complaint alleges that the flooding was caused by a Corps navigation channel, the purpose of which was not flood prevention.
The Corps also can’t be sued simply for making policy or for using due care, but the complaint alleges that the Corps failed to follow statutes which require consultation with national and state fish and wildlife agencies and failed to utilize standard engineering practices.
Plaintiffs theory still has to be proven though. Here’s the decision (pdf): http://brunobrunolaw.com/fileadmin/templates/brunos/PDFs/05-4182_Katrina_Robinson_US_Motion_to_Dismiss.pdf
BTW/ I lived in New Orleans for a few years and fell under the influence of an anti-Corps environmental professor who has been quoted in the papers as suggesting that the mulitiplicity of lawsuits will require the government to form some sort of 9/11 fund. I’m not sure the analogy is apt since the federal government is already committed to paying something, will it simply reduce its previous committment. Can the federal government retroactively change its sovereign immunity laws?
Isn’t it just the opposite, PD? That the exceptions to sovereign immunity are spelled out rather explicitly in the Federal Tort Claims Act and that the Act is construed strictly?
Additionally, it seems to me the Corps is also limited by what it’s been directed to do, what it has the funding to do, and what the courts have allowed it to do and that should provide insulation against the FTCA waiver as well.
BTW thanks for the link. As I read the judgement the court has not precisely ruled against the Corps’s claim that it is exempt as much as it found that the merits were inextricably linked with the issue of jurisdiction and, consequently, the hearing on merits should proceed.
To be blunt, and to eliminate actual legal reasoning in favor of torches in the street, because we are not a kingdom but a Republic and they work for us.
That said, it’s a pretty good idea to save a lot of rigamarole by simply banning lawsuits against government agencies and instead removing government agents from the protection of the law: if someone feels the government agent has failed in his job, he can kill the agent unless the agent kills him first. Unfair, I know, but then, it is efficient, and would ensure that government agents are either competent agents or competent shots. And either way, wouldn’t we all win?
Dave, you may be right about what is the exception and what is the rule.
I think the Corps will ultimately be found immune based upon the Flood Control Act. The SCOTUS decision in U.S. v. James is pretty close to this scenario, so long at the Corps can show some relation to flood control. (James involved recreational reservoirs) But the James decision was reached only after a bench trial on the evidence.
but, what if they knew, or should have known, that the structure they designed was going to fail. For example, the 17th street canal and London Avenue Canal floodwalls were built in the 1990’s of an inferior design, and, there was testing done in 1986 which showed that the cheap design used (for low land acquisition costs) would fail well before before the water level got to the top of the structure. This is exactly what happened in the 17th street canal and London Ave canal failures. The system collapsed so early in the Katrina event, it could have happened without a mandatory evacuation (like during 2005’s Cynthia) and killed thousands. This is criminal negligence, and there is no common law immunity for criminal acts. Discuss fully….