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How Sovereign Immunity Condones Negligence
and Incompetence, and Deprives Citizens
of Due Process Rights

State Seal of Louisiana

Carl and Shirley Bernofsky's house in the Lakeview neighborhood of New Orleans was near the 17th Street Canal that was breached following Hurricane Katrina.  It remained under more than 10-feet of water for weeks following the storm, and its contents were completely destroyed.  Their lawsuit, Bernofsky et al v. Road Home et al, was filed on November 13, 2009 in U.S. District Court for the Western District of Louisiana.

Why We Sued

On May 7, 2006 — as soon as we learned of the Road Home Registry — we went online and registered for the Road Home Program, filling out the requested information and receiving a registry number.  This became Exhibit A of our lawsuit.  Unknown to us, the Road Home Program would lose the record of our registration, and we were never contacted or informed of rules that were later established that made us eligible to be compensated for our Katrina losses.

By the time we realized what had happened, we had missed a deadline to apply.  Senator Mary Landrieu then informed us that we could appeal for an exemption to that deadline, and she wrote to the appropriate state agency on our behalf.  Nevertheless, that agency would not honor our request.

For their negligence, we sued the agencies responsible for carrying out the Road Home Program in Federal Court.  They were: ICF Emergency Management Services, LLC (ICF), the Louisiana Recovery Authority (LRA) and Louisiana's Office of Community Development (OCD).  Our complaint and all ensuing motions, memoranda and exhibits listed on the Docket can be accessed from this Web page.

In the end, the Court ruled that the above agencies, acting on behalf of the state, had immunity for their actions, even if they were negligent or in error.  Our uncontested financial loss was more than $89,000.  We are still living in the same small apartment that we were fortunate enough to find in Shreveport after evacuating New Orleans, where we had lived for 30 years prior to the storm.  Details of our evacuation can be found here.

The Court Judgment

In our pleadings against the motions of ICF and LRA-OCD to dismiss our lawsuit against them (Docket Items No. 24 and No. 30 respectively), we cited evidence and cases to support our argument that those state agencies were not entitled to immunity from suit.  These were dismissed by Judge Tom Stagg and Magistrate Judge Mark L. Hornsby of the U.S. District Court for the Western District of Louisiana, who ruled that the state agencies were indeed entitled to sovereign immunity for their actions (Docket Items No. 33 and No. 34).

Louisiana's government was thus reassured of its immunity from suit for the deprivations of its citizens caused by the negligence, ineptitude or animus of its agents.  It should be noted that the doctrine of sovereign immunity is not derived from any law of the land or federal statute, but was created from whole cloth through judicial dicta, and reinforced by its repeated usage in the courts.  Despite the absence of any constitutional basis that prevents citizens from suing their own state agencies, judges have endowed themselves with arbitrary discretion in the assignment of sovereign immunity, and they exercise wide latitude in its application.  This practice is a travesty of justice, and the public should oppose it strongly.

The Liaison Program

On August 24, 2015 the OCD announced a new plan that would provide additional resources to Road Home participants.  The plan was characterized by the New Orleans Times-Picayune as a "second chance ... that could help thousands of still-displaced homeowners return to southeast Louisiana..."  To implement this plan, "[T]he state has hired a team of liaisons to help people navigate the Road Home grant process."  The newspaper also published the telephone number for receiving liaison help.

On September 2 and September 9, 2015 we spoke by phone with liaison agents "Bob" and "Dianne," respectively.  Bob was encouraging and said he would call back, but never did.  Dianne bluntly explained that, because she could find no record in the "system" based on our name or the address of our house that had been destroyed, she was unable as a matter of policy to offer any assistance, either by restoring registration information into the system or by opening a new application.  Thus, the Road Home Program once again led to a dead end.

Road Home Fraud

On December 21, 2015, the Times-Picayune reported that about 21,500 homeowners were out of compliance with the Road Home grants they received, totaling over $1 billion.  Yet, despite the program's apparent generosity, in 2014 Patrick Forbes, Executive Director of the Louisiana Office of Community Development which administers the Road Home program, refused to answer why the OCD blocked us from applying for eligible compensation by refusing to allow us to file for an exemption to the deadline we had missed because of the program's own negligence.

On Sovereign Immunity

Courts have long recognized that States abrogate their 11th Amendment immunity when they invoke the jurisdiction of the Federal Court, which is what happened in 2007 when the State of Louisiana was forced to litigate its lawsuit over Katrina-related damages against private insurers in Federal Court, and then amended its complaint to expand the class of claimants.*  Although we were unaware in 2009 that the State had waived its immunity when we filed suit against its agencies (ICF, LRA and OCD) for Katrina-related damages, the attorneys hired to defend these agencies (see docket) were surely aware of this waiver when they employed the "immunity defense" against us.  So too, were the federal judges who nevertheless embraced the immunity defense against us (Docket Item No. 33).  Clearly, the Court was determined to absolve the State of its negligence against us.  The ruling is published as 741 F.Supp.2d 773 (2010).

Honoring the Judge

Judge Thomas "Tom" Stagg was the presiding judge who ultimately ruled to grant immunity to the negligent governmental actors who, through willful disregard of duty, failed to take the simple steps necessary to remedy the mistakes that kept us from participating as beneficiaries for the assistance that was made available to senior victims of the Katrina disaster.  It is ironic that U.S. Senators Bill Cassidy and David Vitter of Louisiana would then seek to honor the late Judge Stagg by renaming the U.S. District Court for the Western District of Louisiana — the same Courthouse where we filed suit — the "Tom Stagg Federal Building and United States Courthouse."  We objected to honoring Judge Stagg by dedicating a federal courthouse to his memory.  Nevertheless, on Nov. 3, 2017, the Courthouse was officially renamed the "Tom Stagg United States Court House."

* The State of Louisiana litigated a number of Katrina-related lawsuits against the United States as well as private entities in Federal Court.  The example cited is from State of Louisiana et al v. AAA Insurance et al, appealed to the Fifth Circuit in 2008, in which the justices preface a historical discussion of immunity with the statement (page 9) "...we will ultimately conclude that any immunity from removal to federal court was waived by the addition of the class of private citizens in the amended complaint...".  In that case, the State initially sued the private insurers in State Court on behalf of unrepresented claimants who were damaged by the storm, whereupon the insurers responded by having the case removed to Federal Court where the State would no longer be protected by sovereign immunity.  Despite repeated objections by the State, the insurers prevailed in the appeal and subsequently in 2009 and 2011.

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Carl and Shirley Bernofsky
September, 2015




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