2021 CASE UPDATES

December 05, 2021

DOWNSTREAM – Oral Argument Scheduled

We write to report that we have finally received a confirmed date for the oral argument for the appeal. The date is: January 12, 2022, at 9:00 a.m. (or 10:00 a.m. Eastern). The argument will be presented at the United States Court of Appeals for the Federal Circuit at the Howard T. Markey National Courts Building in Washington DC. Mr. Russell Post will present 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).

We have been advised by the clerk’s office that the oral argument will be available for viewing on YouTube, at the Court’s channel.

There will be three judges assigned to hear our case – unfortunately we do not, and will not know their identities until the morning of oral argument. We expect a ruling to be made in our case anywhere from three to six months after oral arguments are presented.

This is the date that we have been looking forward to since last February, and we await anxiously for a chance to appear before the Court of Appeals for a reversal of the lower court’s ruling. We will send out another reminder as we get closer to the date of oral argument.

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

August 27, 2021

UPSTREAM

August, 2021 marks the fourth year since Hurricane Harvey struck our city – and when the Army Corps of Engineers took a property right from our area – a “flowage easement” – or, the right to flood our community. Our lawsuit, filed back in 2017, is now entering its fourth year. In the mean time, our litigation team continues to fight for justice.

There is not a day that goes by that we are not reminded of the devastation left on our community, and the sacrifices that we were forced to make. We know the fight for compensation is a long and arduous one, but we are still hopeful that our legal journey will soon yield the justice that our community deserves.

Meanwhile, we write to report that the government sought yet another extension to the trial. Initially, we were set to go to trial for the second phase of the case (the “damages” phase) in December of 2021. Now, it appears that the trial will be pushed back for several months – to March of 2022. (The government claims that this short delay is necessary because it needed more time to digest the substance of the Plaintiffs’ (our) reports, prepared by the Plaintiffs’ experts.) While this is disappointing news, we also understand that – for the trial of a case with this magnitude, some delays are unavoidable.

We will update again as the case develops. In the mean time, please let us know if you have any questions or thoughts.

August 27, 2021

DOWNSTREAM

August, 2021 marks the fourth year since Hurricane Harvey struck our city – and when the Army Corps of Engineers decided to open the floodgates to sacrifice our community for the “greater good.” Our lawsuit, filed back in 2017, is now entering its fourth year. In the mean time, our litigation and appeal teams continue to fight for justice.

There is not a day that goes by that we are not reminded of the devastation left on our community and the sacrifices that we were forced to make. We know the fight for compensation is a long and arduous one, but we are still hopeful that our legal journey – now through three judges and two different Court systems – will one day yield the justice that our community deserves.

Meanwhile, we write to report that our appeals team just completed the reply brief – which is the final part of the “briefing” stage of the appeal. Now, we await a date for oral argument before the Court of Appeals, where we will present our side to a three-judge panel, and ask the Court of Appeals to restore justice for us.

A copy of the reply brief is available here.

July 15, 2021

DOWNSTREAM – Governments Submits Its Brief

We have just received a copy of the government’s brief (the Appellee’s brief). This is the legal document that sets forth the government’s legal arguments, and serves as a response to our challenges. This brief is 74 pages long (excluding attachment). A copy of it is available at this link.

To summarize the government’s arguments: it claims that it is not responsible for flooding the Downstream neighborhoods and properties for the following reasons:

• The Downstream homeowners are not entitled to perfect flood protection under state (Texas) or federal law,
• The government’s (Army Corps’) action was not the “cause-in-fact” of the flooding,
• The flooding of the Downstream properties is a one time event, and does not amount to a “taking” of property by the government (which requires compensation).

Needless to say, we disagree with all of the above arguments. While no one is entitled to perfect flood protection, the home and property owners should be entitled to expect that their government would not flood them – or, would at least compensate them if the government does decide to flood them. And, experts (hydrologists, engineers… etc) have already concluded that, the downstream properties were flooded as a result of the Army Corps’ opening of the floodgates. Finally, the flooding (caused by the government) did result in the destruction of homes and personal properties – the flooding may be a one-time event, but the damage is permanent.

The Downstream appeals team is working on preparing a response (a reply brief) to refute each and every one of the government’s contention, and will submit same to the Court as soon as possible. We will continue to update everyone as we move forward on the appeal process.

July 2, 2021

UPSTREAM – Case Continues:

On June 29, 2021, we attended a status conference before Judge Lettow. The Upstream team continues to work diligently to move the case forward for the December trial setting (scheduled for December 6-10, and 13-15). The government did not provide all the information requested in discovery – which resulted in multiple motions and hearings by the Upstream team.

The determination of the value of the “flowage easement” that the government took from home and property owners is a central part of the case. The government presented its “30(b)(6) witness” – a witness who was designated to testify on behalf of the government – for deposition on June 30, 2021.

Plaintiffs are set to present expert reports in July of 2021 (a short postponement from the previous schedule of June 21, 2021) – and the government will present its expert reports in September.

During the conference, Judge Lettow mentioned in passing that this case is probably the second most complex in his legal experience – with many, many moving parts (by the way: he has been a judge for 18 years).

We will continue to report case status as the case enters its final stage – expert discovery (reports, depositions…etc) – before trial

July 2, 2021

DOWNSTREAM – The Appeal Continues

At the present time, the appeal of the Downstream case is still pending. The government’s brief is due July 12, 2021. We will circulate a copy of the brief when we receive it.

As advised previously – once the government sends in its brief, we will file a reply brief. Then, the briefing phase of the appeal will conclude. The Downstream team will then prepare for a chance to appear before the Court of Appeals for oral arguments.

Hurricane Season Begins Again

June 1 marks the start of the 2021 hurricane season. This year, NOAA predicts another above-normal Atlantic hurricane season. A likely range of 13-20 named storms, where 6-10 could become hurricanes (including 3-5 major hurricanes), has been predicted. Having lived through 2017, we know that we cannot rely on any particular person, group, or entity to come to our rescue. We highly encourage everyone to get flood insurance – if you have not already done so.

Below is an article on obtaining and checking whether you have the right flood insurance coverage. We hope this is article is useful.

Considering Selling Your Property?

We have received a number of inquiries from time to time from homeowners who are considering selling their properties. If you are planning to put your property on the market, we ask you to please consult with your agent, and ask the agent to insert a clause in the Purchase/Sale agreement to specifically state that the homeowner will not be selling the right to participate in the lawsuit (Case No. 17-9002L) – and that this right will remain with the homeowner.

Also: if you are in need of a real estate agent, here is someone for your consideration:

Mr. Lary Barton Martha Turner Sotheby’s International Realty
1717 W Loop S, Suite 1700 | Houston, TX 77027
713.520.1981 (o)
713.558.3365 (d)
713.516.0221 (m)
713.559.6112 (f)
Lary.barton@sothebys.realty

We will report back again as the case continues to develop.

As always, please feel free to contact us with any questions or comments.

April 7, 2021

We would like to update everyone with a case development:

UPSTREAM – Upcoming Case Deadlines, and Trial:

Just this morning, Judge Lettow issued a long-awaited scheduling order, and set various deadlines for the case. Most important is the trial setting – which, per the order, is now scheduled for December 6-10, and 13-14, here in Houston, Texas (a total of 7 trial days). While we had hoped for an earlier trial setting, we will comply with the Court’s order and prepare for a trial in December.

Below is a list of the other deadlines from Judge Lettow’s order:

As always, please feel free to contact us with any questions or comments.

March 31, 2021

We would like to update everyone with a few recent case developments:

DOWNSTREAM – Appellants’ Brief Submitted:

We write to report that the Downstream team has submitted the appellate brief to the Court of Appeals. As previously reported, this is the most important aspect of the work for the appeals phase of the case – which involved months of work and countless hours of time spent, summarizing records, caselaw, and legal arguments in order to present the case to the Court of Appeals.

A copy of the brief (677 pages total; 79 pages of arguments, 598 pages of attachments) is available at:

https://www.dropbox.com/sh/fe64d47juslxgtu/AAAYkJzmV4YFoDXRVtobPzb2a?dl=0

Next – the government will have a chance to submit its brief (Appellees’ brief) as a response, and we will have one more chance to provide a reply brief thereafter. Then, the submission is concluded, and we expect the Court of Appeals to select a date for oral arguments to allow both sides to present their arguments live before the Court.

We will report back again as the case continues to develop.

As always, please feel free to contact us with any questions or comments.

February 4, 2021

UPSTREAM: The Judge’s Recent Discovery Ruling and Case Status

Since our last update, the case remained relatively quiet, until last week. Below is a quick summary of what had happened since:

The Upstream case was previously in the midst of a “discovery” dispute with the government – the Upstream team requested certain documents to be produced by the government, pertaining to the Buffalo Bayou & Tributaries Resiliency Study that was previously released last October. The Upstream team sought a copy of the draft of the report – which was apparently more comprehensive and contained detailed appendices that were not found in the version of the report released by the Army Corps. The government refused to produce them, claiming they are privileged. The parties presented this issue to the Court for a decision.

On January 28, 2021, Judge Lettow issued a ruling on this issue. Judge Lettow allowed partial production of the documents – for information concerning the factual materials contained within the draft of the report. Although, the Judge did not allow the discovery of “…the antecedent analysis and recommendations found in the Draft Appendix and other draft materials.”

With that – the discovery phase is now extended. The government will be producing materials in accordance with the judge’s ruling on a rolling basis in the next 30-40 days. The Upstream team anticipates additional discovery may be needed, based on what these documents reveal.

Status Conference and Trial Setting:

Thereafter, the Court scheduled a telephone conference on February 3, 2021 to discuss the status of the case. A few takeaways from the conference:

• Based on Judge Lettow’s ruling, additional discovery is likely necessary. Judge Lettow will therefore allow the extension of discovery, and the case will continue on.
• As for the trial: Judge Lettow plans to have a discussion with the chief judge in the Houston federal court (Judge Rosenthal) to address the issue of logistics and availability for trial. We have been advised that the federal courthouse is capable of accommodating a physical trial with COVID protocols in place.
• At this time, the earliest possible trial setting, as proposed, is September 28, 2021. This is not officially set yet – we will wait for instructions from the Court.
• The expected length of trial is seven (7) days.
• While the parties move forward, Judge Lettow will schedule another status conference in about a month to appraise the status. We hope to have a definitive trial setting by then.

We had hoped for an earlier trial, but, given the circumstances, we will endeavor to aim for the quickest one available.

Judge Lettow has indicated and affirmed his awareness of the importance of this case and its impact locally to the people of Harris County / Ft. Bend County. We believe he will continue to do his best to accelerate the process.

We will report back again after we hear more from Judge Lettow.

As always, please feel free to contact us with any questions or comments.