ELR Citation: ELR 20071
No(s). 05-4182 (E.D. La. Mar 20, 2009)

A district court held that the due care and discretionary function exceptions to the Federal Tort Claims Act do not shield the U.S. Army Corps of Engineers from homeowners' lawsuit against it for damages stemming from flooding following Hurricane Katrina. Plaintiffs argued that the Corps failed to properly maintain the Mississippi River-Gulf Outlet, thereby allowing Katrina's surge to flood portions of Louisiana. The Corps claimed that it was shielded from prosecution under the due care exception, which immunizes government agencies from prosecution for claims based on the execution of a statute or regulation with which the government exercised due care. The Corps also argued that it was protected by the discretionary function exception, which bars claims based on the performance of a discretionary function of the government. Here, there are questions of fact about whether the Corps violated a mandate under the National Environmental Protection Act. Accordingly, the court denied the Corps' motion to dismiss.

[Prior decisions in this litigation can be found at 37 ELR 20035 and 38 ELR 20039.]