2022 CASE UPDATES

August 26, 2022

Remembering This Day

In the blink of an eye, we are entering the fifth year following Harvey, the ensuing flooding, and the unnatural disaster that impacted tens of thousands of homes in our community. We would like to use this chance to commemorate the anniversary of this incident, and the legal battle that we’ve fought for the past five years.

The long legal journey is still continuing. As reported recently: the Appeals Court for the Federal Circuit has agreed with us and reversed the lower court’s ruling. Our case continues to move forward. We have been coordinating efforts with the rest of the Downstream team, and are aggressively preparing a new schedule to the lower court – to pave the way for a new legal ruling based on the instructions from the Appeals Court. We understand the importance of a speedy court decision – and are pushing hard for one. Please stay tuned for that.

It has been a long and arduous five years, but we will continue the good fight for justice. We want to reiterate that we stand with our community in this journey, and the pursuit for just compensation continues. On the eve of this day when the government took countless properties and livelihoods – we take the time to remember what happened to our community and our city, and vow to fight on.

August 26, 2022

Remembering This Day

In the blink of an eye, we are entering the fifth year following Harvey, the ensuing flooding, and the unnatural disaster that impacted tens of thousands of homes in our community. We would like to use this chance to commemorate the anniversary of this incident, and the legal battle that we’ve fought for the past five years.

The long legal journey is still continuing. As reported recently – the trial of the case is concluded, although there are several post-trial events that remain to be completed. Below is a list of upcoming schedules:

Plaintiffs’ opening post-trial brief – August 1st, 2022

Defendant’s responsive brief – September 9th, 2022

Plaintiffs’ reply brief – September 23rd, 2022

Post trial argument – September 29th, 2022 @ 2:30pm

Once the post-trial argument concludes, we expect Judge Lettow to render a decision – which outlines the amount of damages that the homeowners are entitled to. We hope to receive the ruling by the end of the year. Please stay tuned for that.

It has been a long and arduous five years, but we will continue the good fight for justice. We want to reiterate that we stand with our community in this journey, and the pursuit for just compensation continues. On the eve of this day when the government took countless properties and livelihoods – we take the time to remember what happened to our community and our city, and vow to fight on.

June 10, 2022

UPSTREAM TRIAL CONCLUDED, RULING TO BE MADE IN THE COMING MONTHS

This afternoon, the trial for the “just compensation” for the Upstream property owners is concluded. This is the part of the case to determine the amount of compensation that should be paid to the flooded property owners. Although the trial is concluded, the case is not yet over. Post-trial legal briefings will be submitted. Final closing arguments will be presented before Judge Lettow in Washington D.C. in a few months. We expect a decision to be rendered by the Court thereafter – probably sometime in late fall / winter.

The Upstream litigation team did an outstanding job in prosecuting the case. The scale of the trial, the amount of legal work, and the sophistication of this trial – which covers multiple disciplines of science and engineering – is enormous. The legal battle was long and arduous, although, for now, the hardest part of the case is over. We will patiently await a ruling from Judge Lettow, who presided over the 11-day trial here in downtown Houston division in an efficient and precise manner.

We will continue to report as the “just compensation” part of the case continues to its final stage. As always, please feel free to contact us with any questions or comments.

June 2, 2022

BREAKING – DOWNSTREAM – Case Reversed and Remanded

We are pleased to report that this morning, the Court of Appeals for the Federal Circuit issued an opinion that reversed the lower court’s ruling. As everyone recalls – the lower court issued a decision that dismissed our case in 2020, finding that the Downstream property owners did not have a cognizable property interest (in what it referred to as “perfect flood control”). Today, the Court of Appeals reversed the lower court’s decision – finding that a cognizable property interest does exist. We won the appeal!

The Court of Appeals’ decision is a “reverse and remand” – which means that the case will go back to the lower court for further proceedings. The lower court will now have to determine whether a “taking” of the Downstream properties has occurred, and whether the government’s other defense (such as necessity) will be applicable. The fight will continue on.

Nonetheless, this decision by the Court of Appeals means that our case is now alive again. The Downstream team will study this decision and carefully prepare our case as it returns to the lower court. We will continue the good fight for justice for our community.

A copy of the Court of Appeals’ opinion is available at this link.

As always, please do not hesitate to contact us with any questions or comments.

May 07, 2022

UPSTREAM: Trial Scheduled

We write to report that Judge Lettow hosted another conference on March 3, 2022, and issued a new Scheduling Order thereafter. Based on this order, trial is now officially scheduled for May 31, 2022, and will last until June 10, 2022. We are scheduled to have a Pre-Trial conference on May 23, 2022, with two more status conferences in March and May.

The long-awaited trial is now officially scheduled. We will prepare and gear up for the upcoming battle!

As always, please do not hesitate to contact us with any questions or comments.

May 02, 2022

UPSTREAM: Trial Moves Forward

We write to remind everyone that the trial for the case is scheduled to start on May 31, 2022, and will last until June 10, 2022. We just attended a conference before Judge Lettow this afternoon, as the Court and the parties continue to move forward in preparation for the upcoming trial – set to take place here in the Federal Courthouse in downtown Houston.

The Court will be hosting a final pre-Trial conference on May 23, 2022, the week before the trial commences, to finalize any loose ends. We will attend the conference and report back any development or instruction from the Court. (Again: unless you have been specifically notified, you do not need to appear for the trial.) As always, please do not hesitate to contact us with any questions or comments.

February 11, 2022

UPSTREAM: Trial Postponed Again

We attended a telephone conference before the Court this afternoon. Unfortunately, due to availability issues (location, counsel, witnesses), the trial has been postponed again, now tentatively to be held during May 31 to June 10 of this year.

We are disappointed in yet another delay in the trial setting. Although, Judge Lettow has reiterated his interest and intention to get the trial started and finished as soon as possible. We hope this is the last time that the trial is pushed back.

The trial will be held here in Houston, at the Southern District of Texas courthouse in downtown. Judge Lettow advised that while he will permit some witnesses to testify remotely, he expects the majority of the witnesses to testify live in person.

As always, please do not hesitate to contact us with any questions or comments.

January 12, 2022

DOWNSTREAM: Oral Argument Concluded

The oral argument of the case is concluded today. Mr. Russell Post did an excellent job representing the Downstream team. He outlined the reasons why a reversal of the lower court’s ruling was warranted, while forcefully refuted each of the government’s claims and defenses. He also articulated the fundamental premise of our case – that private property may not be taken by the government without compensation – even if the government was exercising its police power, or fulfilling the so-called greater good.

For those who did not have a chance to listen to the oral arguments this morning, a copy of the recording is available for download at this link (under: 01/12/202221-1131Milton v. US (mp3) )

The judges on our panel were: Judge Alan D. Lourie, Judge Raymond T. Chen, and Judge Tiffany P. Cunningham.

By now, the case is officially submitted to the Court. We expect an opinion to be issued within anywhere from three to six months. We will advise as soon as we receive it from the Court. Also: the oral argument today was covered by Houston Chronicle, see this link.

As always, please do not hesitate to contact us with any questions or comments.

January 7, 2022

UPSTREAM: Trial Scheduled (tentatively)

We write to report that after much back and forth, we now have a trial setting – scheduled for March 21 to April 1, 2022 – to be held here in Houston, at the Southern District of Texas courthouse in downtown. Although, Judge Lettow advised that this will remain a tentative trial setting, pending Covid status by then. We remain hopeful that trial will take place as scheduled.

A reminder – this is the trial for the second phase – the “damages” phase of the case. Judge Lettow had already held that the government is responsible for the flooding of the Upstream properties. This trial will determine the amount of “damages” that the flooded property owners are entitled to recover.

Also: unless you have been specifically notified, you will not need to personally attend the trial.

Below is a list of other dates provided by the Court today:
February 3, 2022: Meeting of Counsel and Exchange of Preliminary Witness and Expert Lists
February 4, 2022: Meeting of Counsel Certification
February 11, 2022: Plaintiffs’ Pretrial Memorandum, Witness List, and Expert List, and any RCFC Appendix A motions for leave
March 4, 2022: Defendant’s Pretrial Memorandum, Witness List, and Expert List, and any RCFC Appendix A motions for leave
March 14, 2022: Pretrial Conference 02:30 PM (Telephonic)
March 21 to April 1, 2022: Trial As always, please do not hesitate to contact us with any questions or comments.

DOWNSTREAM: Trial Scheduled (tentatively)

We write to remind everyone that the oral argument for the Downstream appeal will take place next Wednesday, January 12, 2022. We expect our case to be heard by (about) 9:30 a.m. (Central; or 10:30 a.m. Eastern). Our case appears on the Court’s docket as: Milton v. US (21-1131), and will be in Courtroom 201.

Oral argument can be heard via YouTube, at the Court’s channel

We have been advised that, due to Covid restrictions, the arguments will be presented telephonically instead. Mr. Russell Post will be presenting the arguments on behalf of the Downstream team. Both sides (our side, and the government’s sides) are given 15 minutes each to argue (for a combined total of 30 minutes).

As always, please do not hesitate to contact us with any questions or comments.