Berthelot v. United States
Opinion of the Court
The district court dismissed these cases, which seek damages on behalf of homeowners against the United States Army Corps of Engineers and the United States for the allegedly negligent dredging of the Mississippi River Gulf Outlet (“MRGO”) channel, the overtopping of which aggravated the effects of Hurricane Katrina in the New Orleans area. This court previously rejected claims centering on the contention that the government’s decision to dredge the channel as a means of maintenance was negligent. In re Katrina Canal Breaches, 696 F.3d 436 (5th Cir. 2012). Here, the appellants seek to distinguish their claims, now pled under the Suits in Admiralty Act (“SAA”), 46 U.S.C. § 30901 et seq., the Public Vessels Act (“PVA”), 46 U.S.C. § 31101 et seq., and the Extension of Admiralty Jurisdiction Act, 46 U.S.C. § 30101 et seq., on the theory that by dredging with a method called box-cutting, the government acted negligently and violated various federal and state statutes and regulations. We are not persuaded and affirm the judgment. The decision on the method of dredging is shielded by the discretionary function exception.
This court has reviewed the district court’s determination de novo as is required on appeal of a dismissal pursuant to Fed.R.Civ.P. 12(b)(1). In re Eckstein Marine Serv., L.L.C., 672 F.3d 310, 314 (5th Cir. 2012). Further, this court accepts as true all facts alleged by the appellants in their lengthy complaint. Appellants concede that the discretionary function exception, specifically integrated in the Federal Tort Claims Act, 28 U.S.C. § 2680(a), also applies to claims against the federal government under these admiralty statutes. Baldassaro v. United States, 64 F.3d 206, 208 (5th Cir. 1995); B & F Trawlers, Inc., et al. v. United States, 841 F.2d 626 (5th Cir. 1988); Wiggins v. United States, 799 F.2d 962 (5th Cir. 1986). Appellants further agree that they had the burden to plead facts showing that the government’s decisions or actions were not discretionary within . § 2680(a). St. Tammany Parish, ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009).
According to the Appellants’ complaint, the Corps and its contractors (collectively, “the government”), using vessels, dredged the MRGO channel over several decades in
The Supreme Court’s two-prong test applies to determine the applicability of the discretionary function exception. See United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). First, particular government conduct “must involve an element of judgment or choice.” In re Katrina Canal Breaches, 696 F.3d at 449 (internal citations omitted). The discretionary function exception does not apply, however, if “a federal statute, regulation or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive.” Id. (internal citation omitted). Second, the exception protects only conduct based on considerations of public policy, that is, conduct that is susceptible of policy analysis. Id. (internal citations and quotations omitted); see Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988).
On appeal, the homeowners have cited a plethora of federal and state statutes and regulations, which we list below for reference.
The district court’s judgment dismissing these cases is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be ' published and is not precedent except under the limited circumstances set forth in 5th Cm. R. 47.5.4.
. Because application of the discretionary function exception is conclusive, we do not reach the government’s attempt to rely on Section . 702c of the Flood Control Act, 33 U.S.C. § 702c, a contention that appears to have been rejected by In re Katrina Canal Breaches, 696 F.3d at 444-48.
. The Appellants cite the following federal and state statutes and regulations as requiring that dredging be conducted in a manner that protects wetlands and minimizes flooding: Clean Water Act, 33 U.S.C. §§ 1311, 1323; Coastal Zone Management Act of 1972, 16 U.S.C. § 1451, et seq.; Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq.; State and Local Coastal Resources Management Act of 1978, La. R.S. § 49:214.21 et seq.; 15 C.F.R. Part 930; 33 C.F.R. Parts 320, 322-23, 325, 330, 335-338; Executive Order No. 11990, 42 Fed.Reg. 26961 (May 24, 1977); Coastal Use Guidelines, LA. ADMIN. CODE tit. 43, §§ 701, 705, 707.
Reference
- Full Case Name
- In re KATRINA CANAL BREACHES LITIGATION. Colleen Berthelot, Wife of Jackie Berthelot Heber Dunaway Amy Janusa, Wife of Michael Janusa Angele J. Guient Betty Lundy David Anderson Beatrice Allen Phillip Reed Together with all individuals and entities whose names appear on the attached exhibit A, both individually and on behalf of others similarly situated Jim Adams, Together with all individuals and entities whose names appear on the attached exhibit A, both individually and on behalf of others similarly situated Alvin Ball, Jr., Individually and on behalf of all others similarly situated Cynthia Edmond Frederick Bradley, Together with all individuals and entities whose names appear on the attached exhibit A, both individually and on behalf of others similarly situated v. United States of America, Chris B. Albrecht Backupusa, L.L.C. Brian Banks Louis A. Becnel Diane Bias v. United States Army Corps of Engineers United States of America
- Status
- Published