By Peter Whoriskey
Washington Post Staff Writer
Sunday, May 13, 2007
NEW ORLEANS -- Ever since the floodwaters receded, the idea that the U.S. government was to blame for the Katrina catastrophe has possessed and angered its victims.
A legion of lawn signs, posted in front of many wrecked homes, wagged a finger at the U.S. Army Corps of Engineers, the federal agency responsible for the flood works: "Hold the Corps accountable!"
Turns out it was more than mere talk. After a massive deadline filing rush recently that is still being sorted through, the United States is facing legal claims from more than 250,000 people here demanding compensation because, they allege, the Corps negligently designed the waterworks that permeate the city.
No one knows whether the plaintiffs will get a dime, and legal experts note the difficulties of successfully suing the federal government. But officials said the damage claimed against the Corps exceeds $278 billion, an amount that dwarfs even the estimated $125 billion that the federal government has put up for Gulf Coast hurricane recovery.
Win or lose, the volume of claims is a measure of the prevalent sense in this city that the United States created the disaster and that, worse, it has failed to make up for it in disaster aid.
"This was the largest catastrophe in the history of the United States, and people want justice," said Joseph M. Bruno, one of the plaintiffs' attorneys handling the case in federal court. "So when we went public with this, the public went nuts."
During the deadline rush in March, the federal agency was so overwhelmed by the claims that a traffic jam formed in front of its offices here. Even now, nearly two months after the deadline, agency workers are still compiling the paperwork. One of the first plaintiffs in the suits was well-known local television news anchorman Norman Robinson.
The damages claimed have yet to be tallied, but the state asked for $200 billion and the city $77 billion. Bruno brushed aside criticism from those who suggest people are signing on to the lawsuit in the same way they buy a lottery ticket -- as a meager investment that could reap big winnings.
"This isn't just people jumping on the bus," he said.
The litigation, still in its earliest stages, is complex.
There is no dispute that the flood works designed by the Army Corps of Engineers failed in Katrina, or that the Corps made mistakes.
An engineering review panel convened by the Corps noted that although Katrina was worse than the type of storm the levee system was designed for, the performance of the flood works "was less than the design intent." The devastation "was aided by the presence of incomplete protection, lower than authorized structures [levees], and levee sections with erodible materials," it said.
But it is far from clear whether the federal government can be sued for such errors. Federal law blocks many lawsuits against the government, particularly those that threaten the discretion of government officials to act. Another law restricts lawsuits for flood damages.
The strategic challenge for the plaintiffs' attorneys is to find the kind of errors for which the government lacks immunity.
Bruno, along with a coalition of other law firms, has focused on two essential issues.
First, according to the legal filings, the construction of the shipping channel known as the Mississippi River Gulf Outlet created a "hurricane highway" that allowed the storm surge to reach the city. That flooded the eastern half of New Orleans.
Second, according to the lawsuit, the improper dredging of the 17th Street Canal led to the toppling of a flood wall. That led to the inundation of the western half of the city.
But even if those allegations can be proved -- and the causes of the flooding are clouded by scientific disputes -- it is by no means clear that the government can be sued as a result.
In its response to the Mississippi River Gulf Outlet allegation, papers filed by government lawyers argue that whether the channel really amounted to "a shotgun pointed straight at New Orleans," as the plaintiffs say, doesn't matter.
"Even if these allegations were true, the United States could not be held liable," they wrote.
Robert C. Longstreth, a lawyer who helped defend the United States against such cases in the mid-1980s and is the co-author of a leading treatise in that area of law, is likewise skeptical.
The allegations are too general, he said, and would have to be more focused to overcome the immunity that government officials have when making policy decisions.
The lawsuits "are phrased as overarching policy attacks," he said. "They're going to have to be much more specific in finding something that the government was required to do and didn't."
He did note, however, that one of the judge's key orders in the case seemed to indicate sympathy for the plaintiffs.
"This judge is certainly looking to give them every opportunity to prove their case," he said.
In the once-flooded sections of the city, such as New Orleans East, where roughly two-thirds of the homes are still vacant, many residents view the lawsuit against the Corps as a long shot.
But they joined anyway -- not necessarily to win some money, but to express their anger about the levees they thought were safe.
"I think they lied to us," said Don Grantz, 59, who lost his home and furniture store in the flood.
He is living out of a trailer in his front yard and stood amid his semi-deserted suburban neighborhood.
"I don't know who you blame," he said, shaking his head. "Maybe you blame yourself for living in an area like this.
"But there's no doubt about it: The levees failed."