Case 1:17-cv-09001-CFL Document 177 Filed 11/21/18 Page 1 of 3

In the United States Court of Federal Claims

Sub-Master Docket No. 17-9001L

(Filed: November 21, 2018)

IN RE UPSTREAM ADDICKS AND

BARKER (TEXAS) FLOOD-
CONTROL RESERVOIRS

THIS ORDER APPLIES TO:

ALL UPSTREAM CASES

ORDER

Procedurally, the very numerous takings cases involving the Addicks and Barker (Texas)
Flood-Control Reservoirs have been split into Sub-Master Docket 17-9001L (upstream cases)
and Sub-Master Docket 17-9002L (downstream cases). Currently pending before the court is
defendant the United States’ (“the government’s”) Motion to Consolidate the two sub-dockets
(“Def.’s Mot.”), filed on October 25, 2018, ECF No. 167. The motion is opposed by the
upstream plaintiffs, who filed a Response in Opposition to the United States’ Motion to
Consolidate (“Pls.’ Opp’n”) on November 5, 2018, ECF No. 173. Defendant filed a Reply in
Support of Motion to Consolidate (“Def.’s Reply”) on November 13, 2018, ECF No. 174. The
government’s motion was filed as the parties in the upstream cases are completing discovery in
preparation for trial to commence on February 19, 2019. Correlatively, trial in the downstream
cases is scheduled to occur several months thereafter, i.e., to begin on April 8, 2019.

The government’s motion in support of consolidation cites Rule 42(a) of the Rules of the
United States Court of Federal Claims (“RCFC”). According to the government, the cases in the
two sub-master dockets have “common facts and legal questions,” and consolidation would
“reduce the burden on fact and expert witnesses,” “conserve judicial resources,” and “shorten the
overall length of the cases.” Def.’s Mot. at 14-22. (capitals removed). The government further
contends that consolidation will avoid delay, confusion, and prejudice. See id. at 17-20, 22-25.
The government also raises the possibility of inconsistent judgments between the upstream and
downstream cases. See id. at 17-20. According to the government, there is a risk that “the
[c]ourt could decide in the Upstream cases that the Corps should have released floodwaters
sooner, while the [c]ourt in the Downstream cases could decide that the Corps should have held
back the floodwaters to a greater extent.” Id. at 17.

The upstream plaintiffs, on the other hand, respond that consolidation is not warranted
and would actively prejudice them both before and during the upcoming trial. See generally
Pls.’ Opp’n. They aver that the two cases are not factually similar, because “[u]pstream
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[p]laintiffs have never alleged that ‘the Corps should have released water sooner or later.’” Id. at
9.1 In controverting the government’s assertion about common factual questions, plaintiffs
contend that the upstream cases only share four of fourteen factual questions with the
downstream cases. See id. at 10. Finally, plaintiffs represent that consolidation “would cause
delay, confusion, and prejudice,” while also “distrupt[ing] judicial efficiency.” Id. at 14, 15.

Consolidation in this court is governed by RCFC 42(a), which permits the court to
consolidate actions before the court if they involve “a common question of law or fact.” The
permissive “may” indicates the rule is discretionary, but the court should also consider whether
consolidation would cause unfair prejudice, confusion, or delay. Id.

Here, there are not enough common issues of law or fact to make consolidation
appropriate. The two groups of plaintiffs have different factual predicates and different legal
theories. The upstream plaintiffs are not arguing the Corps should have released water sooner to
avoid flooding. See Pls.’ Opp’n at 1. Rather, upstream plaintiffs are arguing that the failure of
the government to purchase all of the necessary land for the reservoirs resulted in a compensable
taking of private property. See id. at 1-2 (“Fundamentally, and expressly, [u]pstream [pl]aintiffs
do not premise their claims on the timing of the gates’ opening,” but instead argue that “the
[g]overnment operated the dams as designed to store water on [] private property.”) (emphasis in
original). In upstream plaintiffs’ view, all of the fact and expert evidence and testimony
regarding the decisions of the Corps during Tropical Storm Harvey in August, 2017 that directly
relate to the downstream plaintiffs will be irrelevant to the upstream plaintiffs.

In the circumstances, and contrary to the government’s assertion, there is no duality to

liability in this case. The court could cogently find the government liable in both the upstream
and downstream cases, but on disparate grounds. Although the factual underpinnings for the two
groups do share commonalities, these similarities are overwhelmed by the differences. 2

Confusion would reign if the two sets of cases were consolidated. Two large groups of
attorneys and plaintiffs would need to reconcile their different approaches to these sets of cases
in rapid fashion. Requiring the two groups to combine at this late stage, when each has
proceeded along their own respective tracks for the past year, would result in unfair prejudice to
the plaintiffs. As for the court, trial of already complex sets of cases would become more
complicated to the point of being unmanageable.

1
Plaintiffs note that the government’s brief fails to provide any citation to the upstream
plaintiffs’ complaint for their allegation that the two cases share common factual issues. See
Pls.’ Opp’n at 9.
2
In their preparation for trial, upstream plaintiffs represent that they have not focused on
the Corps’ procedures for operating the dams, the history of other flood events, how the Corps
operated during those events, the character of the Corps’ action, the extent of floodwaters above
the dams when the gates were open, the effect of opening the gates, and how the Corps reached
its decision to open the dams, among other factual matters. See Pls. Opp’n at 9-10.

2
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The two groups of plaintiffs were bifurcated on December 21, 2017, for the more
efficient administration of the two sets of claims. See Case Management Order No. 4, ECF No.
10. As part of the preparation for trial, separate test properties were identified in each of the two
sub-dockets, such that those test properties might serve as bellwethers for the separate sub-
dockets. Fact discovery in the upstream cases closed on October 26, 2018, and expert reports in
that sub-docket were due on October 31, 2018. See Scheduling Order of Oct. 15, 2018, ECF No.
160. It is not apparent why the government waited until October 25, 2018 before requesting that
the cases be consolidated. See Def.’s Mot. at 1.

Therefore, for the foregoing reasons, defendant’s motion for consolidation is DENIED.

It is so ORDERED.

s/ Charles F. Lettow
Charles F. Lettow
Senior Judge