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Immunity, Duval Style

The King Can Do No Wrong
Federal judges have conferred upon themselves an imperial status that renders them immune from decisions they make while sitting on their judicial thrones.  Thus, “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority.”  This remarkable statement by the U.S. Supreme Court in 19781 is the basis of a judicial shield that judges can invoke when confronted by a plaintiff's evidence of judicial error and/or misconduct.  Moreover, judges have gone beyond this self-protection and conferred similar status on agencies of the federal government, as famously described in the class action lawsuit against the U.S. Corps of Engineers2 over the federal flood control projects whose failure was responsible for the flooding that devastated New Orleans after Hurricane Katrina struck the city on August 29, 2005.  The immunity granted to governmental agencies shields them from being accountable to plaintiffs who have been injured through negligence, malice, or ineptitude.  It is another example of the erosion of democracy by the judiciary that lends itself to an "Occupy the Courts" response from the public.
Federal Court Issues Decision Critical of the Corps of Engineers While Granting the Corps Immunity Related to Hurricane Katrina
January 31, 2008

A decision has been issued in the United States District Court for the Eastern District of Louisiana, by Judge Stanwood R. Duval, Jr., dismissing the consolidated class action lawsuit against the United States Army Corps of Engineers for the failure of the Orleans Parish outfall canals, and in particular the 17th Street Canal, that allegedly accounted for approximately 80% of the flooding of downtown New Orleans in the wake of Hurricane Katrina.2  The only remaining defendants are the Orleans Parish Levee Board and the New Orleans Sewerage and Water Board.

Judge Duval ruled that the 17th Street, London and Orleans Avenue outfall canals were federal flood control projects and therefore statutorily immune from suit under the Flood Control Act of 1928. In an opinion2 that was very critical of the Corps of Engineers, Judge Duval stated the following:

"While the United States government is immune for legal liability for the defalcations [misappropriation of money] alleged herein, it is not free, nor should it be, from posterity's judgment concerning its failure to accomplish what was its task. The citizens of each and every city in this great nation have come to depend on their government and its agencies to perform certain tasks which have been assigned to federal agencies by laws passed by Congress and overseen by the Executive Branch.

It should not be unreasonable for those citizens to rely on their agents, whom they pay through their taxes, to perform the tasks assigned in a timely and competent way. However, because of § 702c, there is neither incentive, nor punishment to insure that our own government performs these tasks correctly. There is no provision in the law which allows this Court to avoid the immunity provided by § 702c; gross incompetence receives the same treatment as simple mistake.

This story — fifty years in the making — is heart-wrenching. Millions of dollars were squandered in building a levee system with respect to these outfall canals which was known to be inadequate by the Corps' own calculations. The byzantine funding and appropriation methods for this undertaking were in large part a cause of this failure. In addition, the failure of Congress to oversee the building of the LPV [Lake Pontchartrain and Vicinity Hurricane Protection Plan] and the failure to recognize that it was flawed from practically the outset — using the wrong calculations for storm surge, failing to take into account subsidence, failing to take into account issues of the strength of canal walls at the 17th Street Canal while allowing the scouring out of the canal — rest with those who are charged with oversight.

The cruel irony here is that the Corps cast a blind eye, either as a result of executive directives or bureaucratic parsimony, to flooding caused by drainage needs and until otherwise directed by Congress, solely focused on flooding caused by storm surge. Nonetheless, damage caused by either type of flooding is ultimately borne by the same public fisc. Such egregious myopia is a caricature of bureaucratic inefficiency.

It is not within this Court's power to address the wrongs committed. It is hopefully within the citizens of the United States' power to address the failures of our laws and agencies. If not, it is certain that another tragedy such as this will occur again.  Accordingly,

IT IS ORDERED that the United States' Motion to Dismiss with respect to Counts I-III and VI-VII of the Superseding Master Consolidated Class Action Complaint and to Strike the Remaining Counts (Doc. 6380) IS GRANTED . . ."

  1. U.S. Supreme Court, Stump v. Sparkman, 435 U.S. 349 (1978). 
    See also: Wikipedia, "Stump v. Sparkman," http://en.wikipedia.org/wiki/Stump_v._Sparkman, accessed 03/02/08.

  2. Order and Reasons, In Re Katrina Canal Breaches Consolidated Litigation, Civil Action No. 05-4182, Document 10984, U.S. Dist. Ct., Eastern Dist. La., January 30, 2008.

From: Michael Payne, "Federal Court Issues Decision Critical of the Corps of Engineers While Granting the Corps Immunity Related to Hurricane Katrina," Federal Construction Contracting Blog, January 31, 2008, http://federalconstruction.phslegal.com/..., accessed 11/28/2011.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.




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