New Ruling on Katrina Favors Corps of Engineers - NYTimes.com

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New Ruling on Katrina Favors Corps of Engineers - NYTimes.com: 

A federal appeals court has reversed itself, ruling that the Army Corps of Engineers is not liable for devastation caused in Hurricane Katrina by a government-built navigation canal - the Mississippi River Gulf Outlet.  Dredged from 1958-1968, MRGO has now been "deauthorized" by Congress.
The Court of Appeals for the Fifth Circuit ruled that the United States of America is immune from lawsuits for decisions made by the Corps in design and maintenance of the 76-mile shipping channel carved through Louisiana wetlands  by the Corps.

“MR-GO’s size and configuration greatly aggravated the storm’s effects on the city and its environs,” wrote Judge Jerry E. Smith, writing for a three-judge panel, but the "discretionary function exception" to the federal tort claims act “completely insulates the government from liability.”
In March, the same panel had ruled that the government was liable for some of the flooding, affirming a landmark ruling by Judge Stanwood Duval Jr. of federal District Court in 2009 (647 F. Supp. 2d 644)
Treating the government's petition for en banc review by the entire circuit as a petition for panel rehearing, the three judge panel withdrew its earlier pro-plaintiff opinion  in In re Katrina Canal Breaches Litig., 673 F.3d 381 (5th Cir. March 2, 2012) and reversed itself (September 24, 2012).  The court concluded that even though the Army Corps of engineer's MRGO's design did not gain immunity under the Flood Control Act, 33 USC 702c, yet any design flaw-caused damages were entitled to immunity under the Federal Torts claims Act's discretionary function exception 28 USC 2680 (a).  That measure provides that the government's consent to suit does not include

"(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. "

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