Off with His Head: The King Can Do No Wrong, Hurricane Katrina, and the Mississippi River Gulf Outlet

Dyess, Christopher R. | January 1, 2014

Congress passed the Federal Tort Claims Act in 1946 to provide a legal remedy to citizens for torts committed by the Federal Government. Prior to the act, United States citizens were mostly prohibited from filing suits against the government for torts committed by government employees. However, Congress when passing the act realized that some government actions are the result of considered policy judgment for what is in the best interest of the citizenry as a whole. In order to prevent the government from being sued for such actions, Congress included what is referred to as the Discretionary Function Exception. If a government employee’s action falls within the parameters of the Discretionary Function Exception the government is immune from tort liability. This Article argues that courts have interpreted the Discretionary Function too broadly such that it now excuses the government from egregious unjustifiable harms to the American public.

The Article explores this topic using a recent example in which the Fifth Circuit Court of Appeals, in a confused opinion, denied relief to victims of Hurricane Katrina. Even though the Army Corps of Engineers—who is responsible for a navigational canal found to be the cause of multiple levee breaches—admitted wrongdoing, the Fifth Circuit used the broad application of the Discretionary Function Exception to deny liability for the government. After reviewing the jurisprudential history of the Federal Tort Claims Act, the Article argues that a doctrinal application of the Discretionary Function Exception should find that the government is not immune from liability. Finally, the Article reviews the purposes and policy justifications for tort law and concludes that the only just result in the Hurricane Katrina case is a finding of liability.