One might look with suspicion upon a court that initially issues a unanimous decision in favor of one litigant, and then subsequently reverses course entirely and renders a unanimous decision for the other litigant. Yet that’s exactly what the U.S. Court of Appeals for the Fifth Circuit did in In re Katrina Litigation. In March, a three-judge panel ruled unanimously that the U.S. Army Corps of Engineers was not entitled to immunity under the Federal Tort Claims Act with respect to damages resulting from flooding in the wake of Hurricane Katrina allegedly arising out of negligent construction and maintenance of the Mississippi River Gulf Outlet. In September, the same three-judge panel issued a new opinion on rehearing, ruling instead again unanimously that the Corps was entitled to immunity.
To be sure, courts sometimes reverse themselves. In the context of courts that hear cases in panels such as the Fifth Circuit that usually happens upon en banc review by the full court. But that’s not what happened here; indeed, the government petitioned for en banc review, a petition that the three-judge panel treated as a simple motion for rehearing (which the government didn’t make).
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