Federal Judge Refuses to Certify Class-Action in Addicks and Barker Flood Takings Litigation

On December 15, 2021, Judge Charles F. Lettow of the United States Court of Federal Claims declined to certify a class action in litigation in which thousands of owners of private property located behind the Addicks and Barker reservoir project in Harris County and Fort Bend County, Texas claim the government took their property without just compensation by diverting flood water during Hurricane Harvey in 2017.¹

Vuk Vujasinovic of VB Attorneys is one of the court-appointed counsel in the litigation and was on the team that won a liability finding for thirteen “test cases” in December 2019. Vujasinovic is designated by the federal judge “to ensure the interests of individual plaintiffs are represented,” and is not among the counsel responsible for class action matters.

Vujasinovic says a motion to certify a class action was filed by other counsel, and denied by Judge Lettow. Judge Lettow’s order indicates the motion for class certification was “DENIED both because of the timing of their request and their failure to satisfy the [necessary] criteria.” Vujasinovic explains that because of this ruling, flood victims should not expect to receive any kind of class action notice in the mail, or otherwise, through which they could join the lawsuit. Instead, Vujasinovic urges flood victims to hire individual counsel now.

Vujasinovic, who represents flood victims in all of the impacted upstream communities, says the litigation will continue to proceed on an individual basis as it has since late 2017. The next step is a trial to determine the just compensation for six of the test cases, which is anticipated to occur in Houston, Texas in March 2022. “The goal is to use our 2019 test case liability victory and apply it to the claims of all of our flood victim clients in order to obtain the just compensation they are owed under the 5th Amendment to the U.S. Constitution.”

Vujasinovic notes that in issuing the December 2019 liability order, Judge Lettow ruled that the government owns a permanent flowage easement over every property that flooded due to the government’s project during Hurricane Harvey. Vujasinovic estimates that 10,000 to 12,000 properties are burdened by this permanent easement, and that the total claimed damages exceed $1 billion.

According to Vujasinovic, now that it is known there will be no class action, it is particularly important for flood victims to hire individual counsel who can enforce their constitutional property rights and obtain the correct amount of just compensation. “Any flood victim who does not properly file their case by the applicable deadline risks being forever barred from recovering any just compensation. They will be giving the government a permanent flowage easement over their property for free. The government can flood their property any time it rains hard enough, without compensation. The government wants as few flood victims as possible to hire counsel and file claims so it won’t have to pay them anything, so it can save as much as possible off the estimated $1 billion it collectively owes property owners in our local communities upstream of the dams.”

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[1] In the United States Court of Federal Claims, Sub-Master Docket No. 17-9001L, In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs.