Introduction to Katrina Litigation
Saden v. Kirby, 660 So.2d 423 (La. 1995)
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New Orleans Sewerage and Water
 2 big pumps, one little one
 underground power line for big pumps
 generator to run one big pump
 power line for big pumps went down
 was still down when flood occurred 3 months
later - finally fixed 6 months after the fault
Was this negligence or discretion?
Pumps in Katrina
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Why are there pumps in New Orleans?
Why did they shut down the pumps during
Katrina?
What is the city's Berkovitz's defense for shutting
down the pumps?
What facts raise the specter of Saden?
Why are plaintiffs avoiding suing the parishes and
the levee control boards?
The Levee Cases
Flood Control Act of 1928
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What happened in 1927?
What are the immunity provisions?
 Flood Control Act of 1928, 33 U. S. C. §702c -which states that "[n]o liability of any kind shall
attach to or rest upon the United States for any
damage from or by floods or flood waters at
any place"
Why did Congress provide this immunity?
How do you get into Court in Flood Act
Cases?
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Is there jurisdiction in the Flood Control Act?
Are these Bivens cases?
FTCA
 What do you need to do before you go to court?
 What do you need to show about the feds
decisionmaking?
Graci v. United States, 456 F.2d 20 (5th Cir.
1971)
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Where was the flood?
What caused it?
Which Corp project is being attacked?
What was the purpose of this project?
Why is it inherently risky?
Court's Analysis
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Did the Flood Control Act of 1928 apply in this
case?
What standard would you then apply in
determining the government's liability?
Was the government liable?
 What did the government then do?
 Why does this ultimately drive the
characterization of the levees in the Katrina
cases?
Florida East Coast Railway Co. v. United
States, 519 F.2d 1184 (5th Cir. 1975)
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What was the purpose of the project?
Was the flooding due to levee failure?
How did plaintiffs argue that the Corps should be liable,
even it if was a flood control project?
Appeals Court
 The federal courts, however, have reached a
consensus that the United States is protected from
liability for damages caused by "floods or flood
waters" in connection with flood control projects, even
when the government's own negligence has caused or
aggravated the losses.
Central Green Co. v. United States, 531
U.S. 425 (2001)
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California Water Project - irrigation
 Some parts are related to flood control
 Damage is related to irrigation function
Government says immunity if any is flood control
United States Supreme Court
 The text of the statute does not include the words "flood
control project." Rather, it states that immunity attaches to "any
damage from or by floods or flood waters . . . ." Accordingly,
the text of the statute directs us to determine the scope of the
immunity conferred, not by the character of the federal project
or the purposes it serves, but by the character of the waters
that cause the relevant damage and the purposes behind their
release.
Sorting out a Dual Purpose
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Even if the project has a flood control purpose,
the Act does not grant immunity if the damage
was not related to a flood.
Would this mean, however, that even a dual
purpose project would be immune it was a flood?
How far does immunity go?
 Suppose the Corps drops a load of dirt on your
house while building the levee?
 (If the Corps actually built anything anymore)
Levee Issues in Katrina
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What are the negligence claims against the Corp?
Against the levee district?
What are the Corp's immunity claims?
 Are any of the damages not covered by the
Flood Control Act?
 What are the purposes of the canals?
What are the Corp's discretionary authority
defenses?