New Orleans, LA September 21, 2005 – Repairs are underway at one of the three sites where the levee was breeched. Photo by Greg Henshall / FEMA
On April 25, 2013, the United States Court of Appeals for the Fifth Circuit announced its decision in Lonatro, et al. v. United States, No. 12-30425, a case stemming from levee reconstruction performed by the U.S. Army Corps of Engineers in the wake of Hurricane Katrina.
Lonatro involves the interpretation and interplay of a federal statute, the Quiet Title Act (28 U.S.C. Sec. 2409a) and the doctrine of sovereign immunity. In reversing the decision of the U.S. District Court for the Eastern District of Louisiana, the Fifth Circuit made clear that the requirements of the language of the Quiet Title Act must be strictly observed before a suit against the U.S. will be allowed. It held that the prerequisite of a waiver of sovereign immunity was not met in this case.
The doctrine of sovereign immunity bars most civil and criminal suits against the United States and the individual states. It provides an impenetrable defense unless the U.S. has consented to be sued or if the immunity conferred by the doctrine has been waived.
Analysis: Lonatro is significant chiefly because the Fifth Circuit strictly interpreted the language of the Quiet Title Act, which led to a finding of no waiver of the sovereign immunity of the U.S. This precedent will apply to similar projects undertaken by Federal agencies, such as the U.S. Army Corps of Engineers.
For instance, most water resources development projects constructed by the Corps of Engineers (“Corps”) are authorized as Federal and Local partnership undertakings. These projects apportion different responsibilities to the project partners. Most often, the Corps constructs the project while the local project sponsors are required to provide all lands, easements and any other necessary rights-of-way. Usually, the local sponsors will acquire title and possession of the lands and grant a right-of-entry for construction to the Corps, as was done in Lonatro.
After failing in its litigation against the local sponsor Orleans Levee District for reasons stated below, the Lonatro plaintiffs sought relief under the Quiet Title Act and added the United States to its suit. In finding that the title dispute was really between the landowners and the local sponsors, and not between the landowners and the Corps, the Fifth Circuit ruled that the precise requirements of the Quiet Title Act were not met.
The decision in Lonatro is a precedent that will shield the United States from similar lawsuits that attempt to claim a waiver of immunity under the QTA. Further, by shielding the U.S. from liability and litigation delays, this precedent will be of great benefit particularly on natural disasters projects where response time is critical.
Facts of the Case: In the aftermath of Hurricane Katrina, Congress authorized the repair and improvement of the levees surrounding New Orleans. The levees were in the vicinity of the 17th Street Canal and immediately adjacent to private property. The state of Louisiana has a servitude, or right, under state law to enter upon private property in order to maintain the levees. Relying on this authority, the Orleans Levee District granted a right –of- entry to its Federal project partner, the Army Corps of Engineers so that the Corps could begin to reconstruct and improve the levees. Initially, the Corps set to work removing fences, trees and other items abutting or on the levees.
In 2009, the state courts ruled that the plaintiff landowners owned their property subject to the state’s servitude. Subsequently, after more extensive construction on the levees had begun, the landowners filed a new suit in 2011. The state court ruled that the decision in 2009 settled the matter as far as the Orleans Levee District was concerned but allowed the plaintiffs to name the United States as a defendant. Asserting that the Corps did not have a valid right to enter upon their lands, the plaintiffs petitioned the court to settle the property dispute under the Quiet Title Act and asked for damages. The case was removed to the Federal courts and the Fifth Circuit agreed to consider an interlocutory appeal.
Citing a long line of cases, the Fifth Circuit noted that as the sovereign, unless the U.S.consents to be sued or waives its sovereign immunity, then a court will lack subject matter jurisdiction to hear the case. Although the Fifth Circuit agreed that the QTA does provide a waiver of sovereign immunity under certain circumstances, it held that such circumstances were not present in this case. For there to be such a waiver, the QTA requires that action must be one to “adjudicate a disputed title to real property . . . which the United States claims an interest.” 28 U.S.C. Sec. 2409 a(a). The Fifth Circuit found that these express requirements of the QTA were not met because the underlying title dispute was between the plaintiffs and a third party (Orleans Levee District) and not between the plaintiffs and the U.S. Thus, under the plain meaning of the QTA, the statute does not allow a plaintiff to file a lawsuit against the U.S. when its real dispute is entirely with a third party.
Elizabeth Fagot
An expert in federal real estate law and policy, Liz spent 30 years as an attorney with the U.S. Army Corps of Engineers, including becoming the first Assistant Chief Counsel for Real Estate (2004-2011).