Authors: Janet Louise Daley & Judge Stanwood Richardson Duval, Jr.

“The King can do no wrong.” That tenet of sovereign immunity is a touchstone in the common law and was, in essence, the law of the United States until 1946 when the Federal Tort Claims Act (FTCA) was passed. While the FTCA at first blush would appear to give citizens the right in tort to sue the United States for its allegedly wrongful activities, there are a number of exceptions that circumscribe the grant. One such exception is the Discretionary Function Exception (DFE). Some courts have noted that this exception, if given an overly broad interpretation, can result in its swallowing the rule.
In the wake of the levee failures that occurred during Hurricane Katrina and its aftermath, the U.S. District Court for the Eastern District of Louisiana conducted a nineteen day bench trial to determine, inter alia, whether the United States should be held accountable for the devastation that was caused by the collapse of a levee referred to as the MRGO Reach 2 levee, a project of the U.S. Army Corps of Engineers (the Corps). The crucial issue was whether the Corps’s failure to maintain the banks of another Corps project, the Mississippi River Gulf Outlet (MRGO), was the result of the Corps’s negligent failure to act on clear scientific evidence. If so, then the DFE would be unavailable to shield the United States for the damages caused to its citizens when the cataclysmic flooding of St. Bernard Parish and the Lower Ninth Ward occurred, making the Corps liable for the flooding that it knew would occur under the circumstances. The district court found unequivocally that the Corps had, in essence, sacrificed by its inaction the levee project, in favor of the MRGO project, notwithstanding clear scientific and empirical evidence that it knew that its failure to act would result in the failure of the levee. Thus, the court held the Corps liable for the devastation caused by the collapse of the Reach 2 MRGO levee.
On appeal, a unanimous panel of the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) affirmed that decision. But then, on September 24, 2012, treating a petition for rehearing en banc filed by the Government as a petition for panel rehearing, the same panel granted a “rehearing” for which no opportunity for argument or briefing was granted. The appellate court withdrew its original opinion and substituted an opinion by which it unanimously reversed the district court’s opinion, as well as its own, on the Corps’s liability for the MRGO’s impact on the Reach 2 MRGO Levee. It granted the Corps immunity, finding that its actions were “susceptible to policy analysis” and thus immune from action.
The Fifth Circuit’s reversal had its roots in the United States Supreme Court’s last pronouncement concerning the application of the DFE to FTCA, that being the seminal case United States v.
Gaubert. There, the Court opined that:
When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent’s acts are grounded in policy when exercising that discretion. For a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be founded in the policy of the regulatory regime. The focus of the inquiry is not on the agent’s subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.
District and circuit courts have focused their analysis on the second part of this inquiry, i.e., whether the alleged deleterious action is “susceptible” to policy analysis. If a court so finds, then the DFE is applied, virtually disregarding the conjunctive nature of the inquiry as stated by the Supreme Court. However, a court must also examine “the nature of the actions taken.” When governmental actions are based on science or where the government has undertaken a prophylactic task, such as providing a working lighthouse, then the DFE is inapplicable.In its substitute opinion, the Fifth Circuit failed to address the “nature of the actions taken” and focused solely on the issue of whether the actions were “susceptible to policy analysis.” Specifically, the court excised its entire analysis concerning scientific evidence, focused solely on policy considerations and dropped a single footnote dismissing its previous scientific analysis, which had contended that the proffered scientific evidence suggested negligence in the original design of MRGO based on the “funnel effect.” Thus, the court posited that the evidence “[did] not support the theory that the Corp’s decision to delay armoring was grounded in a purely scientific misjudgment.”
In fact, the “funnel effect” had nothing to do with the devastation of the MRGO Reach 2 levee. That footnote suggests that the court may have misunderstood the hydrology of the MRGO and the causes of the devastation to the Reach 2 MRGO levee. But more importantly, it underscores how under the present framework virtually any government decision, no matter how dangerous or grossly negligent, can be shielded with the gloss of its being “subject to policy consideration” if a court does not examine the “nature of the action taken.”
If the FTCA is to have any meaning, Gaubert requires a court to examine not only whether actions are susceptible to policy analysis, but it must also delve into the nature of those actions. In the instance of the Robinson decision, the nature of the actions taken was the Corps’s failure to maintain a federal- project waterway. That failure guaranteed the destruction of another federal project, a federal levee, the very purpose of which was to prevent the death of citizens and the total devastation of their homes and businesses. Under such circumstances, the DFE should not act as a shield.25
This Article posits that the “nature of the action taken” requirement in Gaubert references case law holding that the DFE is inapplicable where the government ignores scientific evidence or where it has created a federal project upon which persons rely for their safety, and then purposefully, without warning, creates the circumstances that insure that very project’s destruction. In doing so, this Article first briefly examines the FTCA and the DFE and the exceptions thereto. It next examines the facts surrounding the MRGO Levee failure, and analyzes these facts in light of the law. It then reviews the Fifth Circuit’s decisions that underscore the fact that focusing solely on whether a decision is “susceptible of policy considerations” in essence means that the government is immune for virtually all acts. If that analysis is correct, then the FTCA is practically meaningless for anything other than quotidian postal-car accidents or medical malpractice at a Veterans Administration Hospital. Finally, this Article addresses whether possible legislative remedies exist that could clarify the government’s liability for damages when it fails to act in a reasonable manner to protect its citizens from obvious danger.

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