Home or property owners near the Addicks / Barker reservoirs whose property was flooded due to the actions of the Army Corps of Engineers on August 27-28, 2017, this applies to you.
March 14, 2019
The hearing on the government’s motion to dismiss was held yesterday before Judge Smith, who traveled to Houston from Washington D.C. for the hearing. The government’s legal team traveled from all over the country for this motion. We asked Mr. David Frederick and Mr. Will Consovoy, who practice in D.C. and are well known appellate lawyers to present the arguments on behalf of the Downstream team.
The government focused on two points (it previously raised multiple points in its motion) to the Court: (1) Causation: the government claims that the homeowners have to show that their homes would not have flooded, but for the construction of the Addicks and Barker reservoirs. In other words, the government contends that we have to show that the construction of the Addicks and Barker reservoirs (built in the 1940s) caused the flooding. (2) Frequency: The government claimed that one event does not constitute a taking, and that for the homeowners, there is no right to be free from flooding guaranteed by law.
These two points were fiercely refuted by the team. First: for many, many homeowners, the flooding only occurred after the storm had ended, the rain had stopped, and the sun came out. Hurricane Harvey itself was not necessarily the cause of the flooding – instead, the government’s decision to open the floodgate was.
Judge Smith asked a question: what if, when the homeowners purchased their homes, they knew that the homes were in a known flood plain? (The government had claimed that Houston is the city that is most likely to flood in the U.S.)
David responded by explaining that, here in Houston, we have a saying: Houston floods, and Houston drains. Temporary flooding that lasted hours was known to occur in the past. But, the flooding suffered by the homeowners in this case – which lasted days and weeks, occurred not as a result of nature, but as a result of manmade flooding. Plus, the vast majority of the homeowners here have never flooded before. In fact, even the government’s own expert conceded that the majority of the test properties (the representatives) flooded as a result of the government’s action – known and referred to as “federal water.”
And, based on the documents produced by the government and the testimony given by government’s own witnesses, the Army Corps of Engineers knew that its decision was going to flood homes, knew that there was a “public use” behind this decision, and went ahead and did it anyway. This is the classic example of a government “taking” – which requires compensation, per the Constitution.
That concluded the hearing, which lasted more than two hours. Judge Smith advised that he will take the arguments from both sides into consideration, and will try to have a ruling within 2-3 weeks. He will then host another hearing on setting up the remaining schedule for the case.
Overall, we think the hearing went well. In the meantime, we will keep our fingers crossed on the judge’s decision. We will of course update everyone when we hear more from the judge.
We want to thank everyone who attended the hearing yesterday. The courtroom was full, and it made an impression on Judge Smith. He commented that this has been one of the most attended hearings that he had seen in recent times. We made an impact together. Thank you.
For those who did not get the chance to participate yesterday – don’t worry. There will be more opportunities, as we expect several more hearings down the road. We will provide more updates when further dates are scheduled.
February 13, 2019
Status of the Case
On February 12, 2019, Judge Smith convened a telephone conference on the status of the case. We attended the hearing, and again iterated the importance of moving the case forward and having a trial date scheduled, as well as the emphasis that our community has placed on this case. Judge Smith considered the arguments, although he did not schedule a trial date. Instead, Judge Smith stated that he would like to first consider the motion to dismiss that was previously filed by the government last year (February 2018), and scheduled March 13, 2019, 9:30 a.m. as a hearing date for same. This hearing will take place here in the federal courthouse in Houston, Texas (515 Rusk St., Houston, TX 77002). No other dates have been scheduled at this time. We encourage everyone to attend.
We will of course attend the hearing and oppose the government’s motion. We anticipate that Judge Smith may schedule further dates during the hearing, including a possible site visit to the reservoirs and the test properties located along Buffalo Bayou. We hope to find out more by the time of the March 13 hearing.
On February 13, 2019, Judge Lettow also convened a telephone conference. Judge Lettow set May 6, 2019 as the trial for the Upstream case. In addition, Judge Lettow also scheduled May 8, 2019 as the date for a site visit (of the reservoirs), to take place in the afternoon (1:30 to 2:00 p.m.). Both sides and the Judge also discussed some other deadlines for various other events (exchanging exhibits list, witness list…etc).
January 31, 2019
Status of the Case
The partial government shutdown came to an end on Friday, January 25, 2019. A number of things have happened since then.
Within hours of the shutdown ending, our firm filed a request for an expedited conference with the Court. We asked the judge to maintain the previous trial setting (April 9, 2019), and cited examples of many homeowners who are still suffering from the aftermath of the flooding to this day – one and a half years later. We asked the judge to maintain the pace and to not let up, and to continue to meet the expectations of Houstonians.
On January 28, 2019, Judge Loren A. Smith issued an order denying our request and stating that a telephone conference would be scheduled in the coming weeks. Thereafter, the Court plans to hold a hearing in Houston sometime in March.
While Judge Lettow suspended the Upstream case on January 18, 2019, the Upstream case was only suspended for seven days. The suspension was lifted when the temporary government shutdown ended on January 25, 2019. The Upstream team has proposed a new trial date of March 19, 2019.
The government has since filed a motion with the Court asking Chief Judge Sweeney to set up a scheduling conference and to establish a coordinated schedule for both the Upstream and Downstream cases. The government also asked for a conference with the Chief Judge before February 15, 2019 (which is also the date of the next possible government shutdown).
As of the time of this update, we still do not have a schedule or trial date in place, and many questions remain to be answered. We are hoping to have more clarity in the coming days from the Court. Once we have more information, we will continue to update everyone.
As always, please feel free to contact us with any questions or comments.
January 21, 2019
Upstream Case Deadlines Suspended
We write to report that last Friday, Judge Charles Lettow signed an order suspending the case deadlines, including the trial schedule, of the Upstream case (previously scheduled for February 19, 2019). The Court’s order was due to the partial government shutdown and the lack of funding for the Department of Justice (and other branches of the government). The government attorneys argued that the partial shutdown and lack of funding prejudiced their ability to prepare for the trial as scheduled. Judge Lettow reluctantly agreed and issued an order suspending all deadlines in the Upstream case, until Congress appropriates funding to the Department of Justice.
We are disappointed with the suspension and hope the President and Congress can quickly find a compromise to end the political stalemate that caused it. As argued by Plaintiffs’ Counsel to the Court, the people in our community are still suffering from the harms inflicted by the government in August of 2017. We need a resolution, fast.
January 9, 2019
New Judge(s) Assigned; Change in Downstream Case
We just received an order from the Court with a new development: the Downstream case has been reassigned from Judge Susan Braden to Judge Loren A. Smith. This reassignment came without any prior notice from the Court, and there was no motion before the Court requesting the reassignment.
The Upstream case is still assigned to Judge Charles F. Lettow. Although, both the Downstream and Upstream cases are also assigned to the (now) Chief Judge Margaret M. Sweeney.
Downstream Case Postponed; Upstream Case Continues
On January 8, 2019, Judge Smith issued an order postponing the Downstream case. Citing the recent partial government shutdown, Judge Smith stated that the current trial and pre-trial schedules were “infeasible and inoperable.” Judge Smith stayed the Downstream case, and will convene a scheduling conference once the partial government shutdown is over and appropriations to fund the Department of Justice have been re-initiated. At this moment, we do not know when the Downstream trial (scheduled in April) will move forward.
Although the trial setting and deadlines in the Downstream case were stayed, the trial setting and deadlines in the Upstream case are still in place and, at this time, set to move forward as scheduled.
We are disappointed with the postponement of the Downstream case and hope it will get back on track soon. We will strongly urge Judge Smith to move the case forward and minimize any delay. Once Judge Smith convenes a scheduling conference, we will immediately advise every one of the Downstream case’s status.
As always, please feel free to contact us with any questions or comments.
December 31, 2018
Expert Depositions Nearing Completion
Since our last update, we have participated in multiple expert depositions. Jack McGehee and Rand Nolen have attended all government expert depositions to date. Thus far, the government has presented the following experts:
Billy Wolfram: Surveyor, who opined on the elevation of the test properties;
Jean-Prieur du Plessis and David G. Hooper: Construction cost estimator and microbiologist, who provided opinion on the costs to repair the flooded test properties (and the effect of mold on the properties);
Robert Nairn: Engineer, who created various flood models for the Upstream and Downstream flooding scenarios;
Craig Landry: Economist, who provided opinions on the values of the housing market after flooding;
Gerald Galloway: Professor of engineering, who opined that Houston is “flood prone”;
Andrew Ickert: Engineer; who provided opinion on the cause of flooding for various Upstream and Downstream test properties;
William Kappel: Meteorologist, who opined that Harvey was an exceptional weather event that generated a significant amount of rain; and
Barry Keim: Meteorologist, who relied on the work by William Kappel.
These government experts also provided various reports that further delineated their opinions. Upon review, most of their opinions are what we knew and expected, and not much came as a surprise.
Further, both Judge Lettow and Judge Braden have indicated that the upcoming February and April trials will involve just the “liability” portion of the case and not “damages.” Thus, some of the experts’ opinions identified above may not be relevant to the February and April trials and their testimony may not be needed or accepted. We will know more by the time of the Upstream and Downstream pretrial conferences on February 12, 2019.
The Plaintiffs’ side has also presented experts for deposition as well. There is one final Upstream expert deposition scheduled in January that remains to be completed. After which, the discovery phase of the case will conclude, and the case will enter the trial stage.
The Upstream trial is scheduled for February 19, 2019, at the Federal Courthouse in downtown Houston; located at 515 Rusk St., Houston, TX 77002. The trial is open to the general public. However, attendance is not required (except for the Upstream test property plaintiffs). We expect the trial to last several weeks.
Additional Information and Reminder
With the trials of both Upstream and Downstream cases fastly approaching, we want to encourage everyone who is interested in joining the case to act quickly. Again: the Upstream trial is scheduled for February 19, 2019; and the Downstream trial is scheduled for April 8, 2019.
Our firm is available to provide more information in person or via seminar to those affected by the Addicks/Barker Reservoirs flooding, as well as the general public. If you are interested in learning more about the case and how to join, please feel free to call us at: (713) 864-4000 or email us at: email@example.com to schedule a meeting or a free information session.
We wish everyone a prosperous 2019, and hope the new year bring about positive changes. We hope 2019 will be a year where the federal government better recognizes its responsibility to all of us.
As always, please feel free to contact us with any questions or comments.
November 30, 2018
We reported in our last update that the government had requested the consolidation of the Downstream and Upstream trials. On November 21, 2018, Judge Lettow issued an order denying the request.
In this order, Judge Lettow stated that pursuant to Court of Federal Claims Rule 42(a), the decision to consolidate (or not) is within the discretion of the Court. Here, there are “…not enough common issues of law or fact to make consolidation appropriate.” The Upstream and Downstream plaintiffs have different factual predicates and legal theories. And, the Court could possibly find the government liable in both the Upstream and Downstream cases on disparate grounds.
Judge Lettow further reasoned that despite existing commonalities in the facts of the two cases, the similarities are overwhelmed by the differences. There would be confusion if the two cases were consolidated.
Citing Judge Lettow’s order, Judge Braden also denied the government’s request to consolidate on November 26, 2018.
Upcoming Site Visit by the Court
Judge Braden and Judge Lettow are expecting to conduct a site visit of the reservoirs and inundation area on February 19, 2019. We expect the site visit to include a tour, visit and examination of the Addicks and Barker reservoirs, the earthen embankment, and some of the test properties in the Downstream and Upstream areas.
We have now concluded the fact witness deposition portion of the case, and are now moving into the expert witness discovery stage. We have exchanged expert reports with the government, and are coordinating with the government on scheduling expert depositions.
Schedules – Key Upcoming Dates
The Courts have issued new scheduling orders. Below is a digest of upcoming schedules for some of the relevant events:
December 10, 2018: Discovery Conference in Houston, TX
December 17, 2018: Close of Expert Discovery
December 24, 2018: Plaintiffs’ Pre-Trial Memorandum, Exhibit List, and Witness List
January 22, 2019: Defendant’s Pre-Trial Memorandum, Exhibit List, and Witness List
February 12, 2019: Pretrial Conference in Houston, TX
February 19, 2019: Trial
February 8, 2019: Expert Discovery Concludes
February 12, 2019: Pre-Trial Conference (By Telephone)
February 28, 2019: Meet And Confer; and Designate And Exchange Exhibit Lists and Witness Lists
March 8, 2019: Filing of A Joint Certification; Exchange Direct Testimony Of Experts
March 25, 2019: Filing of Any Pre-Trial Memorandum Of Law (Optional).
April 8, 2019: Evidentiary Hearing and Trial
Additional Information and Reminder
We want to again remind everyone that the Upstream trial is scheduled to commence on February 19, 2019. The Downstream trial is scheduled for April 8, 2019. For anyone who is interested in joining the case to seek compensation for government flooding, now is the time.
Our firm is available to provide more information in person or via seminar to those affected by the Addicks / Barker reservoirs floodings, as well as the general public. If you are interested in learning more about the case and how to join, please feel free to call us at: (713) 864-4000 or email us at: firstname.lastname@example.org to schedule a meeting or a free information session.
As always, please feel free to contact us with any questions or comments.
October 31, 2018
Depositions of Government Witnesses
A number of additional government and third-party witnesses have given depositions since our last case update, to include: Michael Kauffman (civil engineer, Army Corps of Engineers), Coraggio Maglio (chief of hydrology and hydraulics, Army Corps of Engineers), Jeff Lindner (chief meteorologist, Harris County Flood Control District), Steve Fitzgerald (chief of engineering, Harris County Flood Control District), Braxton Coles (drainage maintenance, City of Houston), Jamila Johnson (flood control manager, City of Houston), and Rick Flannigan (emergency manager, City of Houston).
Below is a summary of some of the information that these witnesses testified to:
- Had the Army Corps not built the dams, then, there could have been alternative measures in place – such as improving the channel (Buffalo Bayou), building diversion canals, constructing new storm drains and pipe systems, changing building codes…etc. A few witnesses agreed that, potentially, the homeowners could have been better off without the dams.
- If the dams were not there in the first place and no alternative measures were in place, then, the homeowners downstream of the dams would likely not have lived in this area (since the area would flood constantly) – and therefore not have been flooded as a result of the stormwater release occasioned by the Army Corps.
- There appeared to be a disconnect in notifying the general public about the (impending) stormwater release back in August of 2017. Some of the witnesses at Harris County stated that they did not receive information concerning the stormwater release until 23:59 on Sunday (Aug. 27), shortly before the release; while some stated that they were informed of the release as early as Sunday afternoon. [Nonetheless, this information was not timely communicated to the general public.]
- The City of Houston witnesses stated that the flooding was not caused by the City. The City’s drainage system was in good working order. Houston floods, and Houston drains.
- The City of Houston witnesses stated that normal flooding duration is less than a day. The City’s drainage system reduces that duration.
- The City of Houston witnesses also stated that they were not informed of the stormwater release until about 23:59 on Sunday (Aug. 27).
- The Army Corps had conducted multiple modeling exercises, utilizing various software programs (HMS, HEC-RAS, ResSIM, FIA…etc) to predict the outcome of flooding – and has been doing so for many years, in order to predict the extent of potential flooding for both upstream and downstream properties.
- In the words of one of the Army Corps’ representatives: the induced surcharge was a big deal – the biggest in his career – as lives and properties were at risk.
Some of the points that were already testified to by others, and were again confirmed:
- The Army Corps had exclusive control over operations of the Reservoirs, including the decision to open the floodgates.
- The water release (the Induced Surcharge) was done by the book – the Water Control Manual – that was created by the Army Corps and the Harris County Flood Control District.
We are nearing the end of the fact witness depositions, and expect to commence the next stage of the case – the expert witness depositions – in the coming months.
Hearings Before the Courts:
Hearing with Judge Lettow (Upstream)
On October 26, 2018, we attended a telephonic hearing before Judge Lettow. The parties discussed extending the deadlines for various items (e.g. expert report exchange; rebuttal report exchange; upcoming status conferences…etc).
During the hearing, the government attorneys discussed their recent request to consolidate the trials for Upstream and Downstream cases. In other words, the government is seeking to merge the two trials into one. The government attorneys advised that they believe there is an overlap of fact witnesses and expert witnesses, and merging the two trials could potentially save costs, while avoiding the possibility of different rulings in the two cases.
Judge Lettow did not render a ruling on the consolidation issue on the spot, but advised that he will take the matter under consideration while inviting a response from the Plaintiffs’ attorneys. We do not believe that consolidation is in the best interest of the plaintiffs, and intend to oppose it.
Hearing with Judge Braden (Downstream)
Also, on October 29, 2018, we attended a live hearing before Judge Braden, who came to Houston to conduct the hearing in the federal district court in downtown.
Judge Braden discussed arrangements and the order of witnesses and elements to be proved at trial. She advised that the upcoming April trial will be focused only on the issue of “liability,” and not “damages.” She advised the parties to remove any witnesses on the “damages” issue from the trial and that there is no need to provide property value appraisal(s). Judge Braden commented that she is well aware of the devastation in the area caused by the flooding, and that the legal issue of “severity” (of the flooding) ought not to be in dispute.
Judge Braden again reiterated that she will not move the April, 2019 trial setting for the downstream case. She also advised that based on her talks with Judge Lettow, that he will likely not move the February, 2019 trial setting for the upstream case, either. Judge Braden mentioned that she understands that many homeowners who were flooded would likely want an answer from the Court soon.
Judge Braden did not rule on the government’s request to consolidate the trials. Instead, she advised that she will await Judge Lettow’s decision on this issue. We will advise if a decision is made to merge the two trials together.
In coordination with the government, on October 1, we conducted an inspection of the Addicks and Barker reservoirs and the release gates. Accompanied and led by the Army Corps’ personnel, we visited the release gates of the two reservoirs, the earthen embankments, as well as the auxiliary spillways at the ends of the dams. Currently, there are new outlet structures being constructed at both reservoirs. The Army Corps explained that these new constructions will “…enhance their ability to provide flood risk reduction.”
(Left: Addicks reservoir release gate. Right: new Addicks reservoir release gate under construction.)
(Left: Barker reservoir release gate. Right: new Barker reservoir release gate under construction.)
(Left: The flood gates at Barker reservoir. Right: Structure reflecting the depth of water at Addicks reservoir.)
(Left: On top of the embankment at Addicks reservoir. Right: The Barker ditch – a support “artery” that collects water outside the reservoir and carry it to the bayou.)
Currently, we are expecting another site visit to be conducted by Judge Braden and Judge Lettow on or about February 19 – immediately before the commencement of the Upstream trial. We expect both Judges to personally examine the reservoirs, the floodgates, and the auxiliary spillways. We also expect both judges to visit the individual test properties.
We are scheduled for a few more depositions of fact witnesses (per agreement by the parties) in the coming weeks. Thereafter, we will be conducting expert witness depositions. We expect multiple hydrologists – both for the Plaintiffs and the government – will be deposed. Soon, the trial for the Upstream case will start.
Additional Information and Reminder
We want to remind everyone that the Upstream trial is still scheduled for February of 2019, and the Downstream trial is scheduled for April of 2019 – which are less than 4 months and 6 months away respectively. The Court has indicated that these dates will not be moved. We urge everyone who is interested in joining the case to act quickly and take action as soon as possible.
Our firm is available to provide more information in person or via seminar to those affected by the Addicks / Barker reservoirs, as well as the general public. If you are interested in learning more about the case and how to join, please feel free to call us at: 713 864-4000 or email us at: email@example.com to schedule a meeting or a free information session.
September 14, 2018
Next Informational Seminar
We will be hosting our September informational seminar on Saturday, September 22, 2018, at 10:00 a.m., at:
PARKWAY PLACE, AUDITORIUM
1321 Park Bayou Dr.
Houston, TX 77077
Please share this with anyone who would like to learn more about the case. We will explain the basis of the case and provide an update on what has been happening with the litigation. For anyone who would like to attend, please RSVP at: 713 864-4000; or email us at: firstname.lastname@example.org to reserve seating. This session is provided free of charge.
Depositions of Government Witnesses (cont’d):
We continue to move forward with the depositions of various government witnesses, to include Robert Thomas (chief of engineering, construction division) (this is his second deposition), Col. Lars Zetterstrom (Commander, Army Corps of Engineers’ Galveston District, which oversees Houston), Jeffrey East (representative of the U.S. Geological Survey).
Below is a summary of some of the information we learned:
- The decision to open the floodgates was communicated by Army Corps’ local personnel up the chain of command, to the commanding general and chief of the Army Corps of Engineers and the Pentagon. In other words, the opening of the floodgates was a decision that was made, or at least unopposed, by the top decision makers within the federal government.
- Despite discussions of potential consequences, ultimately, the Corps decided to follow the Water Control Manual (compiled by the Corps and the Harris County Flood Control District), and performed the “induced surcharge” – releasing water along the Buffalo Bayou.
- The Corps allegedly provided “inundation maps” for upstream properties years prior to Harvey. This is a map that projects flooding level to the upstream area if the stormwater accumulated beyond government owned land (many upstream homeowners advise that they have never seen such “inundation maps”).
- The Corps claims that, during Harvey, it was not responsible for issuing evacuation orders, and that responsibility was with local government (county, city…etc). The Corps also claims that it had communicated its flooding model and forecast to local government. [This was disputed by officials from Harris County and City of Houston during an April, 2018 Congressional hearing.]
- The stormwater held by the reservoirs was referred to as “federal water.” The “federal water” went beyond government owned land, and flooded properties upstream; and, during the “induced surcharge” operation, also flooded properties downstream, as it traveled along what’s referred to as the “surcharge corridor,” which resulted in the flooding of thousands of properties.
- While the government has compiled computer modeling and forecasts, it is generally agreed that eyewitness account of flooding is equally (if not more) reliable. In other words: the account from a homeowner who saw and experienced flooding is probably more reliable than the government’s flood modeling.
- The Corps has requested funding to study buyout programs for (1): downstream properties that could be flooded by an induced surcharge (floodwater release), and (2): upstream properties that have the potential to flood when the reservoirs reached their capacity. The funding for such study has been approved as part of the 2018 budget. We will see what happens.
We are scheduled for a number of other depositions from now until early October – when the discovery phase of the case closes. The Court will convene another conference to evaluate the status of the case and see how things are moving forward. We will continue to update everyone.
Hearing Before the Court (Downstream)
In a recent hearing, Judge Braden reiterated that she expects the case to move forward to trial as quickly as possible. She informed the parties several times that she will not delay or postpone the trial (scheduled for April of 2019). Judge Braden advised that she has learned that the people of this community are still struggling and suffering, and wants to have a fast resolution. We wholeheartedly agree.
Harris County Flood Bond Passed
The Harris County Flood Bond was passed on August 25, 2018 by an overwhelming majority (with 85% of the vote approving the bond). For a list of Proposed Projects and an Interactive Map, please visit: http://www.harriscountyfemt.org/cb
As always, please feel free to contact us with any questions or comments.
August 27, 2018
Today marks the one-year anniversary of the opening of the dams at the Addicks and Barker reservoirs (from midnight of the 27th going into 28th), as well as the flooding of most of the upstream inundation area. The acts and decisions made by the Army Corps of Engineers concerning the two reservoirs affected the lives of Houstonians.
To this day, this incident continues to weigh on tens of thousands of individuals throughout this area. Billions of dollars in damages have been inflicted, countless hours and effort have been put into the recovery process, and many of us are still working on returning to where we were before. We know there are still many who have to live in the unflooded second floor of their homes. We know the long and painstaking process in dealing with contractors, builders, or adjusters. We know there are still many of us who do not yet have a home to return to. We know the rebuild and recovery process will take time.
We here at McGehee ☆ Chang Landgraf wish to take this opportunity to remember this day, and look forward. We will continue on with the litigation process and demand the federal government to take responsibility, and fulfill its duty under the Constitution. We will continue to fight for just compensation for everyone who suffered losses to save others and to promote the greater good. We will fight for what is deserved for everyone’s sacrifices.
We want to share one thing that Jack likes to say:
“If it’s wrong, fight it. If it’s right, fight for it.”
We will fight on.
August 03, 2018
Reminder – Upcoming Deposition Broadcast
We will be taking the deposition of Mr. Richard Long – the U.S. Army Corps of Engineers’ representative in charge of managing the Addicks and Barker reservoirs, on Tuesday, August 7, 2018, at 10:00 a.m. We will be coordinating with leadership attorneys for this deposition.
The deposition will be broadcast live in the conference room on the first floor of our office’s building. If you are interested in watching, please contact us at: 713-864-4000, or e-mail us at: email@example.com to RSVP.
Conference room address:
Towers at Westchase I
10370 Richmond Ave., 1st Floor – Conference Center
Houston, TX 77042
July 27, 2018
Upcoming Deposition – Invitation to Watch
Our firm is scheduled to take the deposition of Mr. Richard Long – the U.S. Army Corps of Engineer’s representative in charge of managing the Addicks and Barker reservoirs. The deposition will take place at our office on August 7, 2018, at 10:00 a.m. We will be coordinating with leadership attorneys for this deposition.
While the deposition will be taken at our office, it will be broadcast live in the conference room on the first floor of the building, and is open to the Plaintiff homeowners. If you are interested in watching the deposition, please contact us at: 713-864-4000, or e-mail us at: firstname.lastname@example.org to RSVP. Seating will be limited on a first come, first serve basis, please contact us soon.
Address to our conference room:
Towers at Westchase I
10370 Richmond Ave., 1st Floor
Houston, TX 77042
Discovery and Other Issues
We are still heavily engaged in the discovery phase of the case. As of today, we are about half way through the depositions of the Plaintiffs test properties. At the present pace, we expect to conclude the depositions by September. Then, we expect to begin the “expert witness” stage.
We have been informed that the attorney previously representing the Government – Ms. Jaqueline Brown – is being reassigned to other tasks out of country. We have been informed that the Government has assigned new attorneys to the case, who are:
Downstream: Kristine Tardiff (from DOJ’s New Hampshire office)
Upstream: William Shapiro (from DOJ’s California office)
Hearing Before Judge Lettow
On July 24, 2018, Judge Lettow (Upstream) held a hearing on issues involving discovery. The parties discussed upcoming depositions of government witnesses, including Robert Thomas (Army Corps of Engineers’ chief of engineering and construction), and Richard Long (Army Corps of Engineers’ natural resource management specialist), and production of documents. Judge Lettow asked the government attorney to do what he can to move depositions forward as quickly as possible. Based on the current plan, the depositions of these individuals will be carried out by Upstream and Downstream counsel separately – meaning that these individuals may be deposed twice by different attorneys.
Although we are still in the first phase of the case (liability), we would ask everyone to document your losses to your property now rather than later. As time goes on, information and records could be lost, and memories could fade. Preservation of evidence concerning the property damage at this time is thus important.
As discussed in our previous updates, we would ask everyone to gather and maintain records for the following items for the time being:
(a): Documents reflecting the costs to repair your property. Estimates from contractors, invoices and bills, and receipts and checks in relation to any repair/rebuild. If such repairs were paid for with cash, we would ask you to please document the payment as well.
(b): Content (personal property) lost due to the flooding, such as furniture, appliances, electronics, and vehicles.
We are including a sample Excel Worksheet with this Update (titled “Content List Worksheet”). Please feel free to use this, or adjust it to fit your situation.
We know it is impossible to list and identify everything that was lost, so we only ask you to list them to the best of your ability. To the extent that there are receipts, appraisals, or insurance payment paperwork available for lost content, please also keep them. Additionally, photographs of the items lost, taken before loss (previous family photos capturing the dining room table that was lost, pre-loss insurance photos, etc.) work well.
(c): If you plan to sell your property, we would ask you to maintain an appraisal of the fair market value of the property before the flooding (if available).
(d): Any other out-of-pocket expenses – such as rent paid for temporary housing.
The more information and documentation, the easier it will be to claim and prove them in Court. Let us know if you have any questions.
Houston After Harvey
The Houston Public Media has recently launched a program named “Houston After Harvey.” This is a program that discusses Houston’s experiences and memories following Harvey. Multiple community leaders, public officials, and Houstonians were interviewed and gave their perspectives. The program is available at: https://www.houstonpublicmedia.org/harvey/
Our firm is available to provide more information in person or via seminar to the general public. Please let us know if you are interested in obtaining more information, or would like to participate in the case. Please feel free call us at 713 864-4000 or write to us at: email@example.com to schedule a meeting, for a free information session.
June 29, 2018
Discovery Moves Forward
The deposition phase of the case has officially begun. On June 27, 2018, the first set of Plaintiff depositions for the Downstream cases were taken (the first set of depositions for the Upstream cases took place the week before). Plaintiff depositions will continue throughout the summer and into early August, with approximately two dozen depositions scheduled for the test property owners.
Depositions of the government’s representatives and employees may also take place during the same time frame, likely to start in mid-July. Our law firm is scheduled to depose various witnesses with knowledge of the government’s decision to open the Reservoirs’ flood gates during August 27 – 28, 2017; as well as witnesses who have been designated by the government as “representatives” of various subject matters under Rule 30(b)(6). We plan to provide further updates upon the completion of these depositions.
Additionally, the government is currently conducting another round of elevation surveys of the various test properties. These elevation surveys will continue in conjunction with the witness depositions.
June 29, 2018 Hearing with Judge Braden
On June 29, 2018, the Downstream counsel held a conference call with the Court. Judge Braden reiterated her commitment to take this case to trial pursuant to the current schedule. She urged the parties to move forward quickly and resolve any outstanding discovery issues. We will comply with her instructions and continue to prosecute the case aggressively.
Upcoming Harris County Flood Bond
For those who reside in Harris County:
Harris County is currently proposing a $2.5 billion bond for flood risk reduction projects. This bond will include the following projects:
- Channel modifications to improve stormwater conveyance
- Regional stormwater detention basins
- Major repairs to flood-damaged drainage infrastructure
- Removing large amounts of sediment and silt from drainage channels
- Voluntary buyouts of flood-prone properties
- Wetland mitigation banks
- Property acquisition for preserving the natural floodplains
- Drainage improvements made in partnership with other cities, utility districts, or other local government agencies
- Upgrading the Harris County Flood Warning System
The vote for this bond is currently scheduled for August 25, 2018 – the one-year anniversary of when Hurricane Harvey made landfall. More information concerning the Bond Program is available at: https://www.hcfcd.org/bond-program/
More from Harris County
Recently, the Harris County Flood Control District (HCFCD) – the local partner of the U.S. Army Corps of Engineers – held a series of community meetings to provide information on Harvey and what Harris County is doing to address flooding risks.
Some key takeaways from the meeting:
- 154,170 houses in Harris County (11%), along with 300,000 vehicles flooded.
- HCFCD has been cleaning and clearing Buffalo Bayou since last year, and has substantially improved the channels.
- However, if another hurricane / tropical storm similar in size and magnitude to Harvey arrives, the outcome will likely be similar.If that happens, Harris County’s options will be limited. Please go buy flood insurance.
For a list of upcoming HCFCD Bond Program community meetings, please see: https://www.hcfcd.org/bond-program/community-engagement-meetings/
April 19, 2018
Today, Judge Braden issued a new scheduling order to the case (Downstream). There are many material changes to her previous scheduling order. Most importantly, the Judge pushed the trial setting back – from November of this year to April, 2019.
Below are the new dates:
|May 17, 2018||The Court Will Convene A Telephone Conference At 1:00 P.M. (EST). Dial-In Information Will Be Provided Under Separate Cover.
|September 14, 2018||Fact Discovery Concludes.
|October 15, 2018||Both Parties Simultaneously Will Exchange Expert Reports.
|December 7, 2018||Expert Discovery Concludes.
|January 11, 2019||The Government Will File A Statement Of Material Facts To Support Any Motion For Summary Judgment, Together With Any Affidavits Or Declarations. See Rule of the United States Court of Federal Claims (“RCFC”) 56(a).
|January 18, 2019||Plaintiffs Will File A Response, Either Accepting Or Rejecting The Government’s
|January 11, 2019||Plaintiffs Will File A Response, Either Accepting Or Rejecting The Government’s January 11, 2019 Statement Of Material Facts. (If Plaintiffs Accept The Government’s January 11, 2019 Statement Of Material Facts, The Court Will Set A Briefing Schedule On February 1, 2019. If Plaintiffs Do Not Accept The Government’s January 11, 2019 Statement Of Material Facts, A Pre-Trial Conference Will Be Held On February 1, 2019.).
|February 1, 2019||The Court Will Issue A Briefing Schedule For Summary Judgment And Oral Argument, Pursuant To RCFC 56, Or A Pre-Trial Conference And Hearing Will Be Held At 10:00 A.M. (CST) At The United States District Court For The Southern District Of Texas In Houston, Texas. See RCFC App’x A, VI (Post-Discovery Proceedings).
|February 28, 2019||Both Parties Will Meet And Confer And Designate And Exchange Exhibit Lists, Including Any Exhibits To Be Proffered As A Summary. See RCFC App’x A, VI 13 (b), (c); see also FED. R. EVID. 1006.
Both Parties Will Meet And Confer And Designate And Exchange Witness Lists, Including Experts And Rebuttal Experts. See RCFC App’x A, VI 13(b), (c).
Both Parties Will Exchange The Direct Testimony Of Experts.
|March 8, 2019||Both Parties Will File A Joint Certification. See RCFC App’x A, VI 13(d).
|March 25, 2019||Both Parties Simultaneously Will File Any Pre-Trial Memorandum Of Law (Optional).
|April 8, 2019||An Evidentiary Hearing To Develop The Factual Record Required To Adjudicate Contested Issues Concerning Jurisdiction And A Trial On Liability Will Commence At 10:00 A.M. (CST) At The United States District Court For The Southern District Of Texas In Houston, Texas. Both Parties Will Provide Opening Statements.
|April 9, 2019||The Court Will Conduct A Ground And Aerial Site Tour With Both Parties’ Counsel And Expert Witnesses.
|April 10, 2019||The Evidentiary Hearing And Trial Will Resume And Continue Until Completion.
Read Judge Braden’s order here.
March 21, 2018
Test Properties Selection
We are nearly set with the selection of the “test properties” for the downstream cases and are set with the upstream cases. The government advised its selections and we will be moving forward with these specific properties. We expect the Court to apply its rulings concerning these test properties to other properties in the same geographic zones, in lieu of taking the tens of thousands of flooded properties to trial.
Houston Chronicle Report
A recent Houston Chronicle article reported that, as early as August 24, 2017 (before Harvey arrived in Houston), the Army Corps of Engineers predicted that Hurricane Harvey would fill the Barker Reservoir to record levels and flood neighborhoods to the west of the reservoir. On August 25, 2017, the Army Corps of Engineers predicted that both Addicks and Barker reservoirs would spill beyond government-owned lands, and flood nearby homes and businesses. However, this information was not shared with the public until much later – as late as August 30, 2017. By then, many homes had been inundated for days.
This report does not change our legal theory (constitutional taking), but further reinforces our belief in that the government should take responsibility for flooding tens of thousands of properties both upstream and downstream of the reservoirs.
Comment From Fort Bend County Judge
Fort Bend County Judge Robert Hebert was interviewed by a local Houston radio station – Houston Matters. Judge Hebert commented on the Barker Reservoir flooding (in the upstream area), calling it a “manmade disaster” that occurred because of poor planning.
Listen to the interview here (from 7:50 to 10:23).
As expected, the government filed a motion to dismiss the case. In the motion, the government identified several points, to include:
1. The floodwater release downstream is the exercise of the government’s “police power.” And, nothing the government could do would have changed the outcome.
2. There is no right to be free from flooding under Texas law. Therefore, there was no “taking” since no “right” was taken. And, “taking” is only available for properties built before the dams were in place.
3. It is highly likely that the Plaintiffs’ properties would have flooded, had the Army Corps done nothing in the first place.
4. Plaintiffs did not state with sufficient specificity what property interests were taken.
5. This is really a “tort” and not a “taking.” Because this is a tort, the Court of Federal Claims has no jurisdiction.
We expected these arguments and are confident that the Court will not be persuaded. The leadership team filed a response to the government’s motion on March 20, 2018 (there was a similar motion filed by the government concerning the upstream cases; a response to that motion was filed on March 19). The motion(s) will not be heard by the Court until July 14, 2018. We are optimistic that the Court will not grant the government’s motion(s).
In a telephone hearing on March 1, 2018, Judge Braden indicated that she expects to this case to go to trial by November of this year on the “liability” aspect of the case. We will fully cooperate with the Judge’s instructions to ensure a speedy and timely compliance with that goal.
We are working on the next phase of the case – Discovery. This is the phase where we request documents from the government, take depositions of government witnesses and employees, and further “discover” information relevant to the case. We are working with the leadership team to arrange the next steps involved in the discovery phase.
Next Informational Session
We plan to host our next informational session on April 3, 2018, at Frostwood Elementary School (12214 Memorial Dr., Houston, TX 77024), from 6 to 8 p.m. Please pass this on to anyone who is interested in learning about the case, the legal theory, or the status of the lawsuit. We think there is an advantage to joining earlier rather than later, as the Court is likely to hear cases in the order that they were filed.
As always, please feel free to contact us with any questions or comments.
March 15, 2018
Fort Bend County Judge Robert Hebert was interviewed by a local Houston radio station – Houston Matters. Judge Hebert commented on the Barker reservoir flooding (in the upstream area), calling it a “manmade disaster” that occurred because of poor planning.
Hear the interview here (from 7:50 to 10:23).
February 28, 2018
Today, the government filed its “Answer” to the lawsuit, which provides its official response to the Complaint filed by the Plaintiffs (collectively) in this case. For the majority of the allegations, the government responded by either stating it lacks knowledge or information to respond; or, that the government generally denies the allegations made in the lawsuit. The government did raise some specific defenses (e.g. lack of jurisdiction, relative benefit, necessity…etc) in this document. This Answer is generally in line with what is typically filed in this type of cases. There is no need to file a response to this Answer.
A copy of the government’s Answer can be read here.
February 21, 2018
Houston Chronicle reports:
As early as August 24, 2017, the Army Corps of Engineer predicted that Hurricane Harvey would fill the Barker reservoir to record levels and flooding neighborhoods to the west of the reservoir. On august 25, 2017, the Army Corps of Engineer predicted that both Addicks and Barker reservoirs would spill beyond government-owned lands, and flood nearby homes and businesses. Yet, this information was not shared with the public until much later – as late as August 30. By then, many homes were already inundated for days.
January 29, 2018
On Monday, January 29, 2018, our firm sent a team to the U.S. Army Corps of Engineer’s field office to inspect documents pertaining to its operation of the Addicks and Barker reservoirs. This inspection is conducted pursuant to the Court’s scheduling order, which requires an “initial disclosure” of certain information from the federal government. We were presented with about 20 boxes and several cabinets full of documents, drawings, maps, and files, some dated from more than 70 years ago.
During the inspection, we discovered various items of interest – to include an emergency action plan for the two reservoirs, designs and maps of numerous neighborhoods adjacent to the reservoirs, dam safety programs, and projected inundation maps. We are working with the leadership team to summarize and digest these documents.
The Army Corps of Engineer’s field office itself was flooded during the stormwater release, so the document inspection was hosted off-site at a nearby location. We were able to make digital copies of some of the documents at the inspection site, and our team also ended up taking more than 350 photographs of the documents. The government advised that it will scan and copy these documents, although the process is expected to extend into March.
Information Seminar on January 20, 2018
Several weeks ago McGehee, Chang, Landgraf held an information session for home and business owners affected by the Addicks/Barker reservoirs flooding. The room was full and everyone contributed with questions and discussion. Flood victims came to learn about the case, ask questions, and meet the lawyers responsible for seeking relief from the Government.
As you might have heard, the Court expects the attorneys and the government to streamline the litigation. We are working hard to do so. However, each client still has damages to calculate and work up. We will work on the individualized damages for each client and will have expert appraisers look at each and every house that we represent.
At our meeting this Saturday, we will explain in detail the damages process, how to get signed up, realistic expectations, and current issues in front of the Court. If you or someone you know has not yet joined the litigation, please contact us or attend the next information session.
Next Information Meeting: Saturday, January 20th at 10:00am.
We had standing room only at our last meeting. We will hold another information session for flood victims who want to learn about the status of the case, the representative property process, and the plans for recovery of individual damages.
Meeting Location: 10370 Richmond Ave., Suite 890, Houston, TX 77042.
It is at the corner of Richmond and Beltway 8. Please pass this announcement along to your neighbors. Getting the word out about the case and our meetings will be a big help to us and the affected flood victims.
Due to the volume of attendees at the last meeting, please RSVP if at all possible so that we make enough room for everyone. As always, please feel free to call 713-864-4000, email firstname.lastname@example.org to RSVP or with any questions.
January 4, 2018
Our firm hosted the leadership attorneys for both Downstream and Upstream litigation at our offices. Representatives from the Department of Justice attended the meeting. Both sides discussed how to efficiently move the case forward and handle case related information (such as discovery). Also on the agenda was the selection of “test properties” – cases that are representative of the properties that were damaged as a result of the Addicks/Barker reservoir flooding. Although still a point of significant discussion, it is expected that between 12 to 20 properties will be selected to represent the totality of the affected home and property owners (to be divided between downstream and upstream).
January 3, 2018
We will be meeting with the attorneys representing the Federal Government at our firm to discuss the possibility of selecting “test properties” that are representative of the upstream and downstream properties for the case this Thursday (Jan. 4, 2018).
December 20, 2017
We attended the hearing before the Court today concerning the scheduling of the case. The judge expressed her displeasure of the extensions of time requested by the government, and denied the government’s requests. Although – the judge also indicated that she is willing to reconsider, if the government’s request is more reasonable.
The Court advised that, due to the unavailability of Judge Bruggink and Judge Horn, the Court will likely appoint just one judge for the upstream cases and one for the downstream cases. The parties discussed utilizing the “test property” approach (also referred to as “bellwether cases” by some) in lieu of litigating each and every single case. Judge Braden requested the government’s attorney to advise its position by January 4, 2018.
December 12, 2017
The Court issued an order today, setting a hearing for Wednesday, December 20, 2017, at 10:300 a.m. in Courtroom 10-B in the United States District Court for the Southern District of Texas, at 515 Rusk Street, Houston, Texas. The Court is inviting comment to address alternative “reasonable and instructive recommendations about how to adjudicate jurisdiction and dispositive issues in these cases. This hearing is open to the public, although only the co-counsel appointed by the Court’s November 20, 2017 Orders will be recognized to address the Court.
December 8, 2017
The Court issued an order today denying the Government’s motion to vacate. Judge Braden wrote:
The court will be issuing an Order in response to the Gov’t’s December 1 Motion to Vacate either today or Monday and does not believe any response from the plaintiffs is necessary. That Order, however, will ask both parties views about a potential modification to the court’s November 20th Orders.
Susan G. Braden, Chief Judge
United States Court of Federal Claims
December 5, 2017
Judge Braden issued an order, consolidating the cases that fall under the “downstream” for the purpose of pretrial management. Judge Braden issued a similar order that also consolidated the “upstream” cases.
Per Judge Braden’s order, she has made the following assignments:
– The Honorable Susan G. Braden has been assigned to this Sub-Master Docket to manage jurisdictional discovery and adjudicate issues presented by any motion filed, pursuant to RCFC 12(b)(1)–(7).
– The Honorable Marian Blank Horn has been assigned to this Sub-Master Docket to manage pre-trial discovery and adjudicate all pre-trial dispositive motions.
– The Honorable Susan G. Braden has been assigned to this Sub-Master Docket to manage jurisdictional discovery and adjudicate issues presented by any motion filed, pursuant to RCFC 12(b)(1)–(7)
– The Honorable Charles F. Lettow has been assigned to this Sub-Master Docket to manage jurisdictional discovery and adjudicate issues presented by any motion filed, pursuant to RCFC 12(b)(1)–(7).
The Honorable Eric G. Bruggink has been assigned to this Sub-Master Docket to manage pre-trial discovery and adjudicate all pre-trial dispositive motions.
December 1, 2017
The Government filed a motion to vacate to challenge Judge Braden’s November 20, 2017 order. The motion claims that the November 20 orders do not give the Government enough opportunity to “obtain meaningful fact and expert discovery,” and that these orders “will cause inefficiencies and waste, prejudice to the United States in defending the large number of claims presented, and potentially inconsistent and overlapping decisions.”
November 20, 2017
Judge Braden issued a total of four orders. In the order (Document 67), Judge Braden appointed our firm as one of the representatives for the individual cases.
Judge Braden’s order also appointed additional judges to the case, and established the following deadlines:
|Date||Judge Susan G. Braden (Downstream)||Judge Marian Blank Horn (Downstream)|
|Judge Charles F. Lettow (Upstream)||Judge Eric G. Bruggink (Upstream)|
|12/8/2017||the Government will file any Motion For A More Definite Statement, pursuant to RCFC 12(e).|
|12/15/2017||the parties will exchange Mandatory Initial Disclosures, including lists of documents and tangible items.|
|12/29/2017||the parties will exchange electronically stored information and hard-copy documents.|
|1/15/2018||Plaintiffs may file an Amended Complaint, consolidated or otherwise, in response to any motion filed on December 8, 2017, pursuant to RCFC 12(e).|
|1/30/2018||all initial disclosures and electronically stored information and hard copy documents filed in the pre-trial phase of this case, will be provided to opposing counsel.|
|2/15/2018||the Government will file any Motion To Dismiss, pursuant to RCFC 12(b)(1)-(7).|
|2/28/2018||the Government will file an Answer, pursuant to RCFC 7(a)(2), in response to any Amended Complaint filed on or beforeJanuary 15, 2018. Thereafter, the parties may conduct discovery, subject to court Order, including any expert discovery, to conclude no later than May 31, 2018.|
|3/15/2018||Plaintiffs will file any Response to the Government’s February 15, 2018 Motion To Dismiss.|
|4/2/2018||the Government will file any Reply to theMarch 15, 2018 Plaintiffs’ Response.|
|6/15/2018||the parties will file any dispositive motion(s), pursuant to RCFC 56.|
|7/14/2018||the court will convene an oral argument in the United States District Court for the Southern District of Texas, 515 Rusk Street, Houston, Texas on the Government’s February 15, 2018 Motion To Dismiss.|
|7/16/2018||the parties may file any Responses and/or Cross-Motions to May 14, 2018 dispositive motion(s)|
|7/31/2018||the parties simultaneously may file any Replies.|
|10/29/2018||the court will convene an oral argument in the United States District Court for the Southern District of Texas, 515 Rusk Street, Houston, Texas on any dispositive motions.|
November 1, 2017
Chief Judge of the Court of Federal Claims, the Honorable Susan Braden, along with Chief Judge of the Southern District of Texas, Houston Division – the Honorable Lee Rosenthal, held a hearing to determine the lead counsel for the Harvey flooding case.
October 25, 2017
Our case was reassigned to Chief Judge Susan Braden of the Court of Federal Claims.
October 17, 2017
Our lawsuit is filed with the Court of Federal Claims. The case is titled Young et al v. United States of America, Cause No. 17-1545L.
September 9, 2017
The U.S. Army Corps of Engineers, Galveston District, announced that it will be slowing down the water release from the Addicks and Barker reservoirs.
August 27, 2017
(11:36 p.m.) The U.S. Army Corps of Engineers, Galveston District, announced that it has started releasing water from Addicks and Barker dams.
August 25, 2017
Hurricane Harvey made landfall in Texas.