On Friday, October 6, the Chief Judge of the U.S. Court of Federal Claims held a hearing on all the Harvey flood cases filed so far. Judge Susan Braden presided over a two-hour status hearing to explain the Court’s procedures to more than 100 lawyers and hear some suggestions on how to organize the Harvey caseload.
Irvine & Conner/Larry Dunbar filed the first lawsuit for “upstream” flooding, meaning those properties that flooded because they are inside the Addicks and Barker Reservoirs. The lawsuit is captioned Christina Micu v. U.S., case no. 17-1277. The class action lawsuit asserts that the federal government’s construction of two reservoirs, without buying all of the land within them, and storage of Harvey floodwater on private property within the reservoirs, was an unconstitutional taking.
In briefing before the Friday hearing, some plaintiffs’ lawyers agreed with the Government and asked the Court to consolidate all the Harvey cases into one proceeding. Because this approach would unnecessarily delay resolution of the upstream cases, we disagreed. Our Brief explained the factual differences between the upstream and downstream flooding and that the cases could proceed on separate timetables:
In the “upstream” cases, liability will turn on whether the Corps effected a taking by flooding private properties located within the design pools of the Addicks and Barker Reservoirs. In contrast, in the “downstream” cases, liability focuses instead on whether the Corps “took” entirely different private property by releasing water from the dams at Addicks and Barker Reservoirs on particular dates.
After reading our brief, many lawyers in the downstream cases changed their position and joined us in urging the Court to keep the cases separate.
Throughout the hearing, Judge Braden repeatedly distinguished between upstream and downstream cases. Only the Department of Justice lawyer representing the United States continued to suggest that the cases be heard together. The Government also was alone in suggesting a schedule that will delay a speedy resolution of these cases. Judge Braden did not make any decisions on Friday.
Charles Irvine spoke in open court and urged the Court to keep the upstream cases separate from downstream. Irvine explained that the upstream cases can move much faster toward resolution because of Charles Irvine and Larry Dunbar’s previous litigation concerning the reservoirs. Irvine further explained that his law firm has a trove of Corps documents on the design and operation of the reservoirs going back to the 1950s.
By the end of the hearing, the Court told counsel to tell their clients that though imperfect, the United States has the “best justice system in the world.” She will return to Washington and evaluate how to best manage these cases in light of the attorneys’ arguments. She also said she might ask a local federal district judge to take on the task of appointing lead counsel for the cases.
In terms of next steps, the court will ask for briefing regarding which law firms should become part of the lead legal teams to litigate the cases that have been filed. Then, the lead attorneys will have the opportunity to file amended complaints, if they choose. Also, over the coming weeks, the court will make a decision on how to consolidate the cases. Please be aware it is highly likely that all cases will be consolidated in some fashion; we do not yet know how the court will decide to do this. We think it is a good sign that Judge Braden promptly convened an early procedural hearing, so that this consolidation happens relatively quickly.
It was clear from the hearing that a lot of lawyers are trying to get involved in these cases. You may be contacted by some of them. You may always send an email with any questions about this process, or working with our firm. You may also check our website or call our office, 713.533.1704. We would be happy to talk to you.
Irvine & Conner PLLC