 Carrie A. McMellon; Lori Dawn White; Kathy D. Templeton; Cheri Call v. UNITED STATES -- 2 of 85 -- judgment

Volume 1 of 2
ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 CARRIE A. MCMELLON; LORI DAWN
WHITE; KATHY D. TEMPLETON; CHERI
CALL,
Plaintiffs-Appellants,
No. 02-1494 v.
UNITED STATES OF AMERICA; UNITED
STATES ARMY CORPS OF ENGINEERS,
Defendants-Appellees. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Joseph Robert Goodwin, District Judge.
(CA-00-582-3)
Argued: December 2, 2003
Decided: October 14, 2004
Before WILKINS, Chief Judge, and WIDENER, WILKINSON,
NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,
TRAXLER, KING, GREGORY, SHEDD, and DUNCAN,
Circuit Judges.
Vacated and remanded by published opinion. Judge Traxler wrote the
opinion for the court, in which Chief Judge Wilkins and Judges Wil-
kinson, Williams, King, Shedd, and Duncan concurred, and in which
Judge Niemeyer concurred as to Parts I, III, and IV, and in which

-- 1 of 85 --

Judges Michael and Motz concurred as to Parts I, II, III, and IV(A).
Judge Wilkinson wrote a concurring opinion. Judge Niemeyer wrote
an opinion dissenting from Part II of the opinion of the court. Judge
Motz wrote an opinion, in which Judge Michael joined, dissenting
from Parts IV(B) and V of the opinion of the court. Judges Widener,
Luttig, and Gregory each wrote dissenting opinions.
COUNSEL
ARGUED: Jay Douglas Patton, SCHROEDER, MAUNDRELL,
BARBIERE & POWERS, Cincinnati, Ohio, for Appellants. Dana
Joan Martin, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Todd M.
Powers, SCHROEDER, MAUNDRELL, BARBIERE & POWERS,
Cincinnati, Ohio, for Appellants. Robert D. McCallum, Jr., Assistant
Attorney General, Kasey Warner, United States Attorney, Michael L.
Keller, Assistant United States Attorney, Stephen R. Campbell, Trial
Attorney, Torts Branch, Civil Division, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellees.
OPINION
TRAXLER, Circuit Judge:
Plaintiffs Carrie A. McMellon, Lori Dawn White, Kathy D. Tem-
pleton, and Cheri Call seek damages under the Suits in Admiralty
Act, 46 U.S.C.A. App. §§ 741-52 (West Supp. 2003) (the "SIAA" or
the "Act") for injuries they suffered when they went over the gates of
the Robert C. Byrd Locks and Dam while riding jet skis. The district
court granted summary judgment in favor of the government, and the
plaintiffs appealed. A divided panel of this court concluded that prior
precedent from this circuit foreclosed the government’s argument that
the Suits in Admiralty Act contained an implied discretionary func-
tion exception that barred the plaintiffs’ claims. The panel also con-
cluded that the government had a duty to warn about the existence of
the dam, and the panel reversed the district court’s grant of summary
2 MCMELLON v. UNITED STATES

-- 2 of 85 --

judgment and remanded for further proceedings. See McMellon v.
United States, 338 F.3d 287 (4th Cir. 2003) ("McMellon I").
The government filed a petition for rehearing en banc with regard
to the discretionary function exception issue. Sitting en banc, we now
conclude that the government’s waiver of sovereign immunity
reflected in the Suits in Admiralty Act is subject to an implied excep-
tion similar to the discretionary function exception contained within
the Federal Tort Claims Act, 28 U.S.C.A. §§ 2671-2680 (West 1994
& Supp. 2003). Accordingly, we vacate the district court’s summary
judgment order and remand to allow the district court to determine
whether the facts of this case fall within that exception to the waiver
of sovereign immunity and to conduct any other proceedings that
might become necessary.
I.
The relevant facts are set out in detail in the panel’s opinion, and
we will only briefly recount them here. The plaintiffs were riding two
jet skis on the Ohio River in the vicinity of the Robert C. Byrd Locks
and Dam, a government-owned and operated facility on the Ohio
River. The plaintiffs approached what they believed to be a bridge but
which turned out to be the gates of the dam. Unable to stop or turn
around, the plaintiffs were injured when they went over the gates and
dropped approximately twenty-five feet to the water below. At the
time of the accident, there were several warning signs on the upstream
side of the dam, but the plaintiffs did not see them, and their evidence
indicated that the signs were difficult to see from the river. The plain-
tiffs brought this action under the SIAA, alleging that the government
had a duty to warn about the dangers of the dam and that the signs
in place were inadequate to satisfy this duty.
The government moved to dismiss, arguing that it was protected by
an implied discretionary function exception to the SIAA’s waiver of
sovereign immunity. The government also moved for summary judg-
ment on the merits of the plaintiffs’ claims on the grounds that it had
no duty to warn about the dam and that the warnings it provided were,
in any event, adequate.
Relying on prior authority from this court, the district court
rejected the government’s claim that it was protected by an implied
3 MCMELLON v. UNITED STATES

-- 3 of 85 --

discretionary function exception. The court, however, granted the
government’s motion for summary judgment, concluding that the
government had no duty to warn about the dam. The panel in McMel-
lon I agreed with the district judge on the first point, but reversed the
grant of summary judgment, concluding that the government in fact
had a duty to warn. As noted above, we granted rehearing en banc to
consider whether the SIAA contains an implied discretionary function
exception to its waiver of sovereign immunity.
II.
At the heart of the question presented to this en banc court is the
continuing viability of Lane v. United States, 529 F.2d 175 (4th Cir.
1975). In Lane, this court flatly rejected the argument that a discre-
tionary function exception should be read into the SIAA. After Lane,
however, two cases from this circuit arguably applied some form of
a discretionary function exception to cases arising under the SIAA.
See Tiffany v. United States, 931 F.2d 271, 276-77 (4th Cir. 1991);
Faust v. South Carolina State Highway Dep’t, 721 F.2d 934, 939 (4th
Cir. 1983).
Because we are sitting en banc, there is no doubt that we have the
power to overrule Lane should we conclude it was wrongly decided.
See, e.g., United States v. Lancaster, 96 F.3d 734, 742 n.7 (4th Cir.
1996) (en banc). The panel opinions in this case, however, raised the
question of whether a panel of this court may likewise overrule a
decision issued by another panel. The question of the binding effect
of a panel opinion on subsequent panels is of utmost importance to
the operation of this court and the development of the law in this cir-
cuit. Accordingly, before considering the merits of the discretionary
function question, we first address this important procedural issue.1
1Judge Niemeyer writes separately to note his strong disagreement
with our disposition of this question and with our decision to even
address this issue. Judge Niemeyer believes this portion of our opinion
is advisory (and ill-advised), given that we are sitting en banc and thus
quite clearly have the power to overrule an opinion issued by a three-
judge panel. Judge Niemeyer accuses the majority of reaching this issue
"simply because it believes [the issue] important." Opinion of Judge Nie-
meyer, infra at 37. We note, however, that it was Judge Niemeyer him-
4 MCMELLON v. UNITED STATES

-- 4 of 85 --

A number of cases from this court have stated the basic principle
that one panel cannot overrule a decision issued by another panel.
This statement is typically made in the course of a party’s request that
a panel opinion be overruled by another panel. See, e.g., United States
v. Prince-Oyibo, 320 F.3d 494, 497-98 (4th Cir.), cert. denied, 124
S. Ct. 957 (2003); Scotts Co. v. United Indus. Corp., 315 F.3d 264,
271 n.2 (4th Cir. 2002); United States v. Chong, 285 F.3d 343, 346
(4th Cir. 2002); Potomac Elec. Power Co. v. Electric Motor & Sup-
ply, Inc., 262 F.3d 260, 264 n.2 (4th Cir. 2001); Young v. City of
Mount Ranier, 238 F.3d 567, 579 n.9 (4th Cir. 2001). Instances of
conflicting panel opinions, however, are apparently fairly uncommon
in this circuit, given the paucity of cases explaining how such con-
flicts should be resolved. Nonetheless, we have made it clear that, as
to conflicts between panel opinions, application of the basic rule that
one panel cannot overrule another requires a panel to follow the ear-
lier of the conflicting opinions. See Booth v. Maryland, 327 F.3d 377,
383 (4th Cir. 2003).
Most of the other circuits agree and follow the earlier of conflicting
panel opinions. See, e.g., Hiller v. Oklahoma ex rel. Used Motor Vehi-
cle & Parts Comm’n, 327 F.3d 1247, 1251 (10th Cir. 2003) (explain-
ing that when panel opinions are in conflict, "we are obligated to
follow the earlier panel decision over the later one"); Morrison v.
Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003) ("When faced with
an intra-circuit split we must apply the earliest case rule, meaning
when circuit authority is in conflict, a panel should look to the line
of authority containing the earliest case, because a decision of a prior
panel cannot be overturned by a later panel." (internal quotation
marks omitted)); Southwestern Bell Tel. Co. v. City of El Paso, 243
F.3d 936, 940 (5th Cir. 2001) ("When two holdings or lines of prece-
dent conflict, the earlier holding or line of precedent controls.");
Kovacevich v. Kent State Univ., 224 F.3d 806, 822 (6th Cir. 2000)
self who made this an important issue in this case by virtue of his
dissenting panel opinion. In that opinion, Judge Niemeyer expressed the
view that three-judge panels faced with an intra-circuit conflict should,
in certain circumstances, overrule the opinion that the panel believes was
wrongly decided. Because the question did arise in this case, we believe
it is perfectly appropriate for us to resolve the question in this case.
5 MCMELLON v. UNITED STATES

-- 5 of 85 --

("[W]e must defer to a prior case when two panel decisions con-
flict."); Ryan v. Johnson, 115 F.3d 193, 198 (3rd Cir. 1997) ("Under
Third Circuit Internal Operating Procedure 9.1, when two decisions
of this court conflict, we are bound by the earlier decision."); Newell
Cos. v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed. Cir. 1988) ("This
court has adopted the rule that prior decisions of a panel of the court
are binding precedent on subsequent panels unless and until over-
turned in banc. Where there is direct conflict, the precedential deci-
sion is the first." (citations omitted)). The Eighth Circuit, however,
follows a different approach—a panel "faced with conflicting prece-
dents [is] free to choose which line of cases to follow." Graham v.
Contract Transp., Inc., 220 F.3d 910, 914 (8th Cir. 2000).
We believe the better practice is the one articulated by the panel
majority and followed by most other circuits. When published panel
opinions are in direct conflict on a given issue, the earliest opinion
controls, unless the prior opinion has been overruled by an interven-
ing opinion from this court sitting en banc or the Supreme Court. We
recognize, of course, that application of this rule does require a panel
to effectively ignore certain opinions duly decided by a properly con-
stituted panel of the court. And as pointed out by Judge Niemeyer in
McMellon I, to ignore a panel opinion is, at least on one level, incon-
sistent with our rule prohibiting one panel from overruling another
panel opinion. See Walker v. Mortham, 158 F.3d 1177, 1189 (11th
Cir. 1998) ("Of course, by adopting the ‘earliest case’ rule to resolve
intra-circuit splits, we are still in a sense ignoring the prior panel pre-
cedent rule—by choosing one line of cases, we are implicitly overrul-
ing the other line of cases. This is, however, a necessary consequence
of an intra-circuit split. . . ."). The other alternative (followed by the
Eighth Circuit), however, suffers from precisely the same problem,
because it allows a panel to ignore one panel opinion in favor of
another panel opinion that it finds more persuasive. Thus, neither
approach is a perfect one. In our view, however, the alternative
approach utilized by the Eighth Circuit has certain negative attributes
that are not shared by the earliest-case-governs rule.
The alternative approach would have the effect of extending the
life of intra-circuit conflicts indefinitely, as each subsequent panel
considering an issue over which there was once a conflict would
apparently be free to decide for itself which prior decision it wished
6 MCMELLON v. UNITED STATES

-- 6 of 85 --

to follow. This iteration of the rule could almost encourage the cre-
ation of intra-circuit conflicts. A panel displeased with the way an
issue previously had been decided could simply ignore the case with
which it disagreed, thus creating a conflict and at least the possibility
that the analysis of the second panel opinion would ultimately prevail.
By contrast, requiring subsequent panels to follow the earliest of
the conflicting cases does not allow the possibility of manufactured
intra-circuit conflicts. In addition, the earliest-case-governs rule
brings intra-circuit conflicts to an end as soon as they are recognized.
See Walker, 158 F.3d at 1189 n.25 ("The ‘earliest case’ rule also has
the virtue (if consistently applied) of bringing intracircuit splits to a
screeching halt; the ‘common sense and reason’ rule, in contrast, can
drag such splits out indefinitely as different panels reach different
conclusions about what is common-sensical and reasonable."). The
rule that requires subsequent panels to follow the earliest case in the
event of a conflict thus minimizes the instability and unpredictability
that intra-circuit conflicts inevitably create.
While we recognize that a three-judge panel has the statutory and
constitutional power to overrule the decision of another three-judge
panel, we believe that, as a matter of prudence, a three-judge panel
of this court should not exercise that power. Accordingly, we con-
clude that when there is an irreconcilable conflict between opinions
issued by three-judge panels of this court, the first case to decide the
issue is the one that must be followed, unless and until it is overruled
by this court sitting en banc or by the Supreme Court.2
III.
We now proceed to the question that we granted rehearing en banc
to consider: Whether we should overrule Lane and read into the SIAA
a discretionary function exception. To put this issue in the proper con-
text, some historical background is necessary.
2Of course, a panel faced with an intra-circuit conflict is always free
to suggest an en banc hearing or rehearing, so that the full court can
more quickly resolve the conflict.
7 MCMELLON v. UNITED STATES

-- 7 of 85 --

During the first part of this century, the United States government
had yet to waive its sovereign immunity in admiralty actions. Thus,
if a vessel owned or operated by the government caused damage to
a private vessel, the private owner was without recourse, even though
the government, of course, could seek damages from a private vessel
owner who negligently damaged a government vessel. See Canadian
Aviator, Ltd. v. United States, 324 U.S. 215, 219 (1945). Congress
frequently passed private bills authorizing relief for particular vessel
owners damaged by the government’s actions, a method that proved
to be rather cumbersome and inefficient, see id., particularly once the
government, through the Shipping Board, became the owner of many
merchant vessels. See Marine Coatings of Alabama v. United States,
71 F.3d 1558, 1560 (11th Cir. 1996). In 1916, Congress passed the
Shipping Act, 46 U.S.C.A. App. § 801, which provided that "Ship-
ping Board vessels while employed as merchant vessels were subject
to all laws, regulations, and liabilities governing merchant vessels
regardless of the fact that the United States owned or had an interest
in them." Canadian Aviation, 324 U.S. at 219 (internal quotation
marks omitted).
The Supreme Court interpreted the Shipping Act to authorize in
rem actions and attendant arrests and seizure of government vessels.
See The Lake Monroe, 250 U.S. 246 (1919). Congress responded to
that decision in 1920 by passing the Suits in Admiralty Act, which
prohibited in rem actions but instead authorized in personam admi-
ralty actions in cases involving government-owned or operated ves-
sels that were "employed as a merchant vessel." SIAA § 2, 41 Stat.
525-26 (1920). The SIAA expressly granted the government the right
to take advantage of all of the statutory limitations of liability avail-
able to private parties,3 see SIAA § 6, 41 Stat. 527 (1920), but the Act
3For example, the Limitation of Vessel Owner’s Liability Act, 46
U.S.C.A. App. §§ 181-196, "allows a vessel owner to limit liability for
damage or injury, occasioned without the owner’s privity or knowledge,
to the value of the vessel or the owner’s interest in the vessel." Lewis v.
Lewis & Clark Marine, Inc., 531 U.S. 438, 446 (2001). The Carriage of
Goods by Sea Act, 46 U.S.C.A. App. §§ 1300-1315, provides certain
limitations on a carrier’s liability for damage to cargo. See, e.g., Univer-
sal Leaf Tobacco Co. v. Companhia de Navegacao Maritima Netumar,
993 F.2d 414, 416-17 (4th Cir. 1992).
8 MCMELLON v. UNITED STATES

-- 8 of 85 --

did not include any exceptions to its waiver of sovereign immunity
for the cases that fell within its scope.
For purposes of the original SIAA, a public vessel (such as a naval
vessel) was distinct from a government-owned or operated merchant
vessel. Accordingly, "the Government’s sovereign immunity still pre-
vented a claimant from bringing an in rem or any other proceeding
in admiralty against the United States for injury caused by a public
vessel." Marine Coatings, 71 F.3d at 1560. Congress rectified that
anomaly in 1925 by passing the Public Vessels Act (the "PVA"),
which authorized in personam admiralty actions seeking recovery for
"damages caused by a public vessel of the United States." 46
U.S.C.A. App. § 781 (West 1975). Like the SIAA, the PVA contained
no exceptions to its waiver of sovereign immunity for any particular
claims otherwise falling within its scope.
When PVA and SIAA were enacted, Congress had yet to imple-
ment a waiver of the government’s sovereign immunity as to non-
maritime torts. While Congress had long believed that "the Govern-
ment should assume the obligation to pay damages for the misfea-
sance of employees in carrying out its work," Dalehite v. United
States, 346 U.S. 15, 24 (1953), it took Congress nearly thirty years to
reach agreement on the form that the waiver of sovereign immunity
should take, see id. Finally, in 1946, Congress passed the Federal Tort
Claims Act ("FTCA"), 28 U.S.C.A. §§ 2671-2680 (West 1994 &
Supp. 2003), which waives sovereign immunity for most torts com-
mitted by government employees, subject to several statutory excep-
tions. See 28 U.S.C.A. § 2680.
The most important of these exceptions to the waiver of sovereign
immunity is the discretionary function exception. In 1942, while Con-
gress was working on what would ultimately become the FTCA, an
assistant attorney general testified before the House Judiciary Com-
mittee and stated his view that courts probably would not impose lia-
bility on the government for discretionary actions, even if the act
waiving sovereign immunity did not include a specific exception for
such actions. See Dalehite, 346 U.S. at 27; see also United States v.
S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467
U.S. 797, 810 (1984). Apparently not content to rely on the courts to
protect the government from unintended liability, Congress included
9 MCMELLON v. UNITED STATES

-- 9 of 85 --

an express discretionary function exception in the FTCA. The excep-
tion states that the FTCA’s waiver of sovereign immunity does not
apply to claims "based upon the exercise or performance or the failure
to exercise or perform a discretionary function or duty on the part of
a federal agency or an employee of the Government, whether or not
the discretion involved be abused." 28 U.S.C.A. § 2680(a).
The FTCA excludes from its reach claims for which a remedy is
provided by the SIAA or the PVA. See 28 U.S.C.A. § 2680(d). In
1946, when the FTCA was enacted, the SIAA and PVA waived sov-
ereign immunity only in cases involving public or merchant vessels.
Thus, admiralty tort actions not involving public or merchant vessels
could be pursued against the government under the FTCA. See United
States v. United Cont’l Tuna Corp., 425 U.S. 164, 172 (1976)
(explaining that "[m]aritime tort claims deemed beyond the reach of
[the SIAA and PVA] could be brought only on the law side of the dis-
trict courts under the Federal Tort Claims Act"); see also Somerset
Seafood Co. v. United States, 193 F.2d 631, 634 (4th Cir. 1951) (con-
cluding that certain maritime claims fell within the jurisdictional
scope of the FTCA rather than the SIAA). Of course, any such actions
under the FTCA would be subject to the limitations of that act,
including the discretionary function exception.
During this time, the practice of maritime law proved to be exceed-
ingly complex. The distinction between public vessels (subject to suit
under the PVA) and merchant vessels (subject to suit under the SIAA)
was elusive, and, beyond noting that the categories were mutually
exclusive, courts had difficulty precisely articulating the difference
between the types of vessels. See Continental Tuna, 425 U.S. at 172
n.1; see also Blanco v. United States, 775 F.2d 53, 57 n.4 (2nd Cir.
1985). To further complicate matters, the Tucker Act provided that
general contract actions against the government fell either within the
exclusive jurisdiction of the Court of Claims or the concurrent juris-
diction of the Court of Claims and the district court, depending on the
amount in controversy. See Blanco, 775 F.2d at 57 n.4. But once the
SIAA was passed, most (but not all) maritime contract actions involv-
ing the government fell within the admiralty jurisdiction of the district
courts and were not subject to the Tucker Act. See Matson Navigation
Co. v. United States, 284 U.S. 352, 359-60 (1932) (holding that the
Court of Claims lacked jurisdiction over a contract whose subject
10 MCMELLON v. UNITED STATES

-- 10 of 85 --

matter was covered by the Suits in Admiralty Act); see also Continen-
tal Tuna, 425 U.S. at 172 (explaining that "contract claims not
encompassed by [the PVA or the SIAA] fell within the Tucker Act,
which lodged exclusive jurisdiction in the Court of Claims for claims
exceeding $10,000"). If an admiralty practitioner guessed wrong and
filed in the wrong court or under the wrong act, the consequences
could be dire, because the statutes of limitations under the SIAA and
the PVA were substantially shorter than that of the Tucker Act, and
there was no procedure for transferring cases between the Court of
Claims and the district courts. See Continental Tuna, 425 U.S. at 172-
73; Blanco, 775 F.2d at 57 n.4.
Congress put an end to these problems in 1960. First, Congress
authorized transfers between the Court of Claims and district courts
for cases filed in the wrong court. See Pub. L. No. 86-770, §§ 1-2, 74
Stat. 912 (1960). In addition, Congress amended the SIAA by elimi-
nating the reference to "merchant vessel." See id., § 3, 74 Stat. 912
(1960). Thus, after the 1960 amendments, the SIAA authorized in
personam admiralty actions against the United States "[i]n cases
where if such vessel were privately owned or operated, or if such
cargo were privately owned or possessed, or if a private person or
property were involved, a proceeding in admiralty could be main-
tained." 46 U.S.C.A. App. § 742 (West Supp. 2003). As is relevant to
this case, the 1960 amendments worked no other substantive change
to the SIAA. Specifically, no limitations on the waiver of sovereign
immunity similar to those contained in the FTCA were added to the
Act.
There is no indication in the legislative history that Congress
intended the 1960 amendments to do anything other than correct the
jurisdictional problems mentioned above. Nonetheless, courts have
consistently concluded that the 1960 amendments greatly expanded
the reach of the SIAA to include essentially all admiralty tort actions
that could be asserted against the government. See, e.g., Trautman v.
Buck Steber, Inc., 693 F.2d 440, 444 (5th Cir. 1982); Bearce v. United
States, 614 F.2d 556, 558 (7th Cir. 1980); Kelly v. United States, 531
F.2d 1144, 1148-49 (2nd Cir. 1976); Lane, 529 F.2d at 179. Thus,
after the 1960 amendments, admiralty actions that previously would
have been brought under the FTCA instead had to be brought under
the SIAA—both the SIAA and the FTCA make it clear that the SIAA
11 MCMELLON v. UNITED STATES

-- 11 of 85 --

provides the exclusive remedy for cases falling within its scope. See
46 U.S.C.A. § 745 ("[W]here a remedy is provided by this chapter it
shall hereafter be exclusive of any other action by reason of the same
subject matter . . . ."); 28 U.S.C.A. § 2680(d) (excluding from the
FTCA "[a]ny claim for which a remedy is provided by sections 741-
752, 781-790 of Title 46, relating to claims or suits in admiralty
against the United States").
After the 1960 amendments to the SIAA, questions began to arise
as to whether the SIAA should be read to include an implied discre-
tionary function exception. After all, the admiralty claims that had
previously fallen under the FTCA had been subject to that act’s dis-
cretionary function exception. If the SIAA did not include a discre-
tionary function exception at least as to those claims that previously
would have been brought under the FTCA, then the government
would suddenly be exposed to liability in areas where it had been pro-
tected.
The argument that the SIAA included an implied discretionary
function exception initially was not very well received. In De Bar-
deleben Marine Corp. v. United States, 451 F.2d 140 (5th Cir. 1971),
the Fifth Circuit concluded that a review of the language of the
amended SIAA and its legislative history foreclosed the argument:
It is true that the legislative history says nothing concerning
a purpose to surrender immunity [as to claims previously
within the scope of the FTCA]. It is equally true, though,
that § 742 by its own terms disavows governmental immu-
nity in admiralty actions against the United States. Had the
sole purpose of the legislation been to clarify the confusing
language of the old SIA this would have been better done
by modifying the old § 742 to contain a clear definition of
merchant, public, vessels and cargoes plus a delineation of
contract claims growing out of Governmental shipping oper-
ations.
More positively, the legislative history shows that almost
on the eve of a probable enactment of a narrowly con-
structed solution to conflicts in jurisdiction between the
Court of Claims and the District Courts, Congress . . . set
12 MCMELLON v. UNITED STATES

-- 12 of 85 --

out to solve the underlying problems by eliminating the his-
toric restriction of SIA-PVA liability to non-contractual
claims relating to ships or cargo. It was to assimilate the
Government to the private person in relation to any or all
transactions giving rise to liability in the Admiralty. It
would be incongruous to impute to Congress a purpose to
perpetrate confusion, not by reason of choosing the wrong
forum, but by importing substantive standards of liability
and governmental defenses by a retrospective analysis of
what would have been the case prior to 1960. Reimportation
of FTCA provisions or exceptions produces obviously unin-
tended and irrational distinctions.
Id. at 145-46 (footnotes omitted). This court in Lane likewise rejected
the argument:
[The SIAA] contains no discretionary function exception,
and the Tort Claims Act contains a specific exception of
claims for which the Suits in Admiralty Act provides a rem-
edy. Thus it is clear that this action could not have been
brought under the Tort Claims Act, and it is properly main-
tainable under the Suits in Admiralty Act, which is an effec-
tive waiver of sovereign immunity.
There is no basis upon which we can import the many
exceptions in the Tort Claims Act into the Suits in Admi-
ralty Act, where the United States is to be held accountable
in admiralty whenever a private person, in similar circum-
stances, would be.
Lane, 529 F.2d at 179 (footnotes omitted).
Shortly after Lane was decided, however, the tide turned, and
courts began accepting the argument that the post-1960 SIAA
included an implied discretionary function exception. Coincidentally,
the First Circuit was the first circuit to explicitly so conclude. See
Gercey v. United States, 540 F.2d 536, 539 (1st Cir. 1976). After Ger-
cey, every circuit to consider the question likewise concluded that an
implied discretionary function exception should be read in the SIAA.
See Tew v. United States, 86 F.3d 1003, 1005 (10th Cir. 1996); Earles
13 MCMELLON v. UNITED STATES

-- 13 of 85 --

v. United States, 935 F.2d 1028, 1032 (9th Cir. 1991); Sea-Land
Serv., Inc. v. United States, 919 F.2d 888, 893 (3d Cir. 1990); Robin-
son v. United States (In re Joint E. & S. Dists. Asbestos Litig.), 891
F.2d 31, 34-35 (2d Cir. 1989); Williams v. United States, 747 F.2d
700 (11th Cir. 1984) (per curiam), aff’g Williams ex rel. Sharpley v.
United States, 581 F. Supp. 847 (S. D. Ga. 1983); Gemp v. United
States, 684 F.2d 404, 408 (6th Cir. 1982); Canadian Transp. Co. v.
United States, 663 F.2d 1081, 1085 (D.C. Cir. 1980); Bearce v.
United States, 614 F.2d 556, 560 (7th Cir. 1980). Even the Fifth Cir-
cuit, describing the discussion of the issue in De Bardeleben as non-
binding dictum, has concluded that the SIAA includes a discretionary
function exception. See Wiggins v. United States, 799 F.2d 962, 964-
66 (5th Cir. 1986).
The question, then, is whether this court should overrule Lane, and
as a consequence join the other circuits in concluding that the SIAA
contains an implied discretionary function exception. For reasons that
we will explain below, we conclude that the SIAA’s waiver of sover-
eign immunity should be read to include an implied discretionary
function exception to that waiver. Accordingly, we hereby overrule
Lane to the extent that it concludes the SIAA does not include an
implied discretionary function exception.4
IV.
In support of its view that the SIAA includes an implied discretion-
ary function exception, the government makes two primary argu-
ments. First, the government contends that Congress did not intend to
waive immunity under the SIAA for discretionary actions, and that
this court, therefore, should not interpret the SIAA in a manner incon-
sistent with Congressional intent. Second, the government contends
that principles of separation-of-powers require us to exclude discre-
tionary actions from the SIAA’s waiver of sovereign immunity. We
consider these arguments in turn.
4Because the only portion of Lane that is relevant to this en banc hear-
ing is the portion addressing the discretionary function exception, we
overrule Lane only as to that issue. Lane’s disposition of the other issues
in that case is unaffected by our decision today.
14 MCMELLON v. UNITED STATES

-- 14 of 85 --

A.
First, we consider the government’s argument that we must give
effect to what the government contends is a clear Congressional intent
to exclude discretionary acts from the SIAA’s waiver of sovereign
immunity.
The Supreme Court has repeatedly explained that the plain lan-
guage of a statute is the best evidence of Congressional intent. See,
e.g., Holloway v. United States, 526 U.S. 1, 6 (1999). As noted above,
the SIAA includes no list of exceptions to its waiver of sovereign
immunity, but instead provides only that the government is entitled
to the limitations of liability that are available in admiralty to private
defendants. Thus, the plain language of the SIAA seems to reflect a
Congressional intent that discretionary acts should not be excluded
from the waiver of sovereign immunity. See Barnhart v. Sigmon Coal
Co., 534 U.S. 438, 450 (2002) (explaining that when construing a
statute, "[t]he first step is to determine whether the language at issue
has a plain and unambiguous meaning with regard to the particular
dispute in the case. The inquiry ceases if the statutory language is
unambiguous and the statutory scheme is coherent and consistent."
(citations and internal quotation marks omitted)).
The government, however, makes the rather remarkable argument
that the legislative history of the FTCA supports its view of what Con-
gress intended when it amended the SIAA nearly twenty years later.
According to the government, the legislative history of the FTCA
shows that Congress believed that the courts would not hold the gov-
ernment liable for discretionary acts whether or not the FTCA
included an express exception for such actions. See Varig, 467 U.S.
at 810; Dalehite, 346 U.S. at 27. Accordingly, the government sug-
gests that there was no reason for Congress to include a discretionary
function exception when it amended the SIAA in 1960, because Con-
gress assumed that courts would imply such an exception.
This is a difficult argument to accept. First of all, we fail to see
how a 1942 legal opinion of an assistant attorney general as to the
probability that courts would carve out discretionary acts from a
waiver of sovereign immunity is indicative of what Congress did or
did not intend some twenty years later. But more importantly, Con-
15 MCMELLON v. UNITED STATES

-- 15 of 85 --

gress in fact included a discretionary function exception in the FTCA
even in the face of a legal opinion that the exception was not neces-
sary. Thus, the discretionary function exception was important
enough to Congress in 1946 that Congress included an express excep-
tion in the FTCA, to resolve any doubt about whether courts would
create such an exception on their own. If the exception remained as
important to Congress in 1960 when it amended the SIAA as it was
when the FTCA was enacted, then it stands to reason that Congress
would have written the exception into the SIAA then, particularly
since the 1960 SIAA amendments transferred jurisdiction over a num-
ber of claims from the FTCA to the SIAA. Cf., e.g., Binder v. Long
Island Lighting Co., 933 F.2d 187, 193 (2nd Cir. 1991) ("Congress
enacted the ADEA in the wake of Title VII, and we believe that any
omission in the text of the ADEA of a provision found in Title VII
is likely to reflect a deliberate decision on Congress’s part.").
Likewise, resort to familiar canons of statutory construction fails to
support the interpretation urged by the government. For example, it
is well established that waivers of sovereign immunity "must be con-
strued strictly in favor of the sovereign and not enlarged beyond what
the language requires." United States v. Nordic Village, Inc., 503 U.S.
30, 34 (1992) (citation, internal quotation marks, and alterations omit-
ted); see also United States v. White Mountain Apache Tribe, 537
U.S. 465, 472 (2003) ("Jurisdiction over any suit against the Govern-
ment requires a clear statement from the United States waiving sover-
eign immunity. . . . The terms of consent to be sued may not be
inferred, but must be unequivocally expressed." (internal quotation
marks omitted)). The waiver of sovereign immunity contained within
the SIAA, however, is clear and unequivocal, providing that an in
personam admiralty action may be brought against the government if
such an action could be maintained against a private person. Contrary
to the government’s suggestion, we simply cannot create an ambigu-
ity in the SIAA by looking to the language and structure of the FTCA.
Cf. Lamie v. United States Trustee, 124 S. Ct. 1023, 1030 (2004)
(rejecting argument that statute was ambiguous based on assumption
that Congress intended an amended statute to reflect the parallelism
of a prior version of the statute: "One determines ambiguity, under
this contention, by relying on the grammatical soundness of the prior
statute. That contention is wrong. The starting point in discerning
16 MCMELLON v. UNITED STATES

-- 16 of 85 --

congressional intent is the existing statutory text, and not the pre-
decessor statutes." (citation omitted)).
Moreover, even if the maxim requiring narrow construction of
waivers of sovereign immunity were applicable, the result urged by
the government runs contrary to another maxim of statutory construc-
tion which cautions that courts cannot "assume the authority to nar-
row the waiver that Congress intended." Smith v. United States, 507
U.S. 197, 203 (1993); accord Rayonier Inc. v. United States, 352 U.S.
315, 320 (1957) ("There is no justification for this Court to read
exemptions into the [FTCA] beyond those provided by Congress. If
the Act is to be altered that is a function for the same body that
adopted it.").
Accordingly, we cannot conclude that Congress clearly intended
for the SIAA’s waiver of sovereign immunity to be subject to an
exception for discretionary functions, nor can we reach that conclu-
sion by resort to traditional tools of statutory construction. But as we
will explain below, we reach that very result by consideration and
application of separation-of-powers principles.
B.
"Even before the birth of this country, separation of powers was
known to be a defense against tyranny." Loving v. United States, 517
U.S. 748, 756 (1996) (citing Montesquieu, The Spirit of the Laws
151-152 (T. Nugent transl. 1949); 1 W. Blackstone, Commentaries
*146-*147, *269-*270). Thus,
[t]he Constitution sought to divide the delegated powers of
the new Federal Government into three defined categories,
Legislative, Executive and Judicial, to assure, as nearly as
possible, that each branch of government would confine
itself to its assigned responsibility. The hydraulic pressure
inherent within each of the separate Branches to exceed the
outer limits of its power, even to accomplish desirable
objectives, must be resisted.
INS v. Chadha, 462 U.S. 919, 951 (1983).
17 MCMELLON v. UNITED STATES

-- 17 of 85 --

The "concept of separation of powers," then, is exemplified by "the
very structure of the Constitution." Miller v. French, 530 U.S. 327,
341 (2000) (internal quotation marks omitted). "The Framers regarded
the checks and balances that they had built into the tripartite Federal
Government as a self-executing safeguard against the encroachment
or aggrandizement of one branch at the expense of the other." Buckley
v. Valeo, 424 U.S. 1, 122 (1976). "While the boundaries between the
three branches are not ‘hermetically’ sealed, the Constitution prohib-
its one branch from encroaching on the central prerogatives of
another." Miller, 530 U.S. at 341 (citation and internal quotation
marks omitted).
Accordingly, the Supreme Court has "not hesitated to strike down
provisions of law that either accrete to a single Branch powers more
appropriately diffused among separate Branches or that undermine the
authority and independence of one or another coordinate Branch."
Mistretta v. United States, 488 U.S. 361, 382 (1989). With regard to
the Executive Branch, separation-of-powers concerns are focused "on
the extent to which [a statute] prevents the Executive Branch from
accomplishing its constitutionally assigned functions." Nixon v.
Administrator of Gen. Servs., 433 U.S. 425, 443 (1977). In cases
involving the Judicial Branch, the Court has traditionally acted to
ensure "that the Judicial Branch neither be assigned nor allowed tasks
that are more properly accomplished by other branches," and "that no
provision of law impermissibly threatens the institutional integrity of
the Judicial Branch." Mistretta, 488 U.S. at 383 (citation, internal
quotation marks and alteration omitted). "Even when a branch does
not arrogate power to itself, . . . the separation-of-powers doctrine
requires that a branch not impair another in the performance of its
constitutional duties." Loving, 517 U.S. at 757.
The Supreme Court has made clear that the discretionary function
exception contained in the FTCA is grounded in separation-of-powers
concerns. As the Court has explained, the exception "marks the
boundary between Congress’ willingness to impose tort liability upon
the United States and its desire to protect certain governmental activi-
ties from exposure to suit by private individuals." Varig Airlines, 467
U.S. at 808. Although Varig does not use the phrase "separation of
powers," the Court’s explanation of the purpose behind the exception
18 MCMELLON v. UNITED STATES

-- 18 of 85 --

makes it clear that the exception is a statutory embodiment of
separation-of-powers concerns:
Congress wished to prevent judicial ‘second-guessing’ of
legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an
action in tort. By fashioning an exception for discretionary
governmental functions, including regulatory activities,
Congress took steps to protect the Government from liability
that would seriously handicap efficient government opera-
tions.
Id. at 814 (internal quotation marks omitted); see also Payton v.
United States, 636 F.2d 132, 143 (5th Cir. 1981) ("The crux of the
concept embodied in the discretionary function exception is that of
the separation of powers."); Allen v. United States, 527 F. Supp. 476,
485 (D. Utah 1981) ("[T]he words ‘discretionary function’ as used in
the Tort Claims Act are really the correlative, the other side of the
coin, of the exercise of executive power.").
When the purpose of the discretionary function exception in the
FTCA is considered, it becomes apparent that the absence of such an
exception in the SIAA is problematic, to say the least. For example,
without a discretionary function exception, the government could be
held liable for an initial decision to build a dam across a particular
navigable waterway or to otherwise change the course of a navigable
waterway. See Coates v. United States, 181 F.2d 816, 817 (8th Cir.
1950) (concluding that plaintiffs’ claim for damage to property
caused by the government’s decision to change the course of the Mis-
souri River was barred by the discretionary function exception). The
government could be held liable for the Coast Guard’s drug-
interdiction activities. See Mid-South Holding Co. v. United States,
225 F.3d 1201, 1206-07 (11th Cir. 2000) (concluding that discretion-
ary function exception precluded claim against government for dam-
ages to a private vessel that occurred during Coast Guard’s search for
drugs). The government could perhaps even be held liable for an inac-
curate weather forecast. See Brown v. United States, 790 F.2d 199,
203-04 (1st Cir. 1986) (concluding that discretionary function excep-
tion barred negligence claims brought by relatives of fishermen who
19 MCMELLON v. UNITED STATES

-- 19 of 85 --

drowned during a storm that the National Oceanic and Atmospheric
Administration failed to predict).
As these examples illustrate, if the SIAA does not include a discre-
tionary function exception, the executive branch’s ability to "faith-
fully execute[ ]" the law, U.S. Const., art. II § 3, would be
substantially impaired. As the Second Circuit has explained,
The wellspring of the discretionary function exception is
the doctrine of separation of powers. Simply stated, princi-
ples of separation of powers mandate that the judiciary
refrain from deciding questions consigned to the concurrent
branches of the government. . . .
The doctrine of separation of powers is a doctrine to
which the courts must adhere even in the absence of an
explicit statutory command. Were we to find the discretion-
ary function exception not to be applicable to the SAA, we
would subject all administrative and legislative decisions
concerning the public interest in maritime matters to inde-
pendent judicial review in the not unlikely event that the
implementation of those policy judgments were to cause pri-
vate injuries. Such an outcome is intolerable under our con-
stitutional system of separation of powers.
In re Asbestos Litig., 891 F.2d at 35 (citations and internal quotation
marks omitted); see also Tiffany, 931 F.2d at 276 ("It is plain that the
discretionary function exception to tort liability serves separation of
powers principles by preventing judicial second-guessing of legisla-
tive and administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort." (alteration
and internal quotation marks omitted)).
Moreover, if all executive-branch actions taking place in the mari-
time arena were subject to judicial review, the judiciary would be cal-
led upon to decide issues it is not equipped to resolve. We do not
mean to suggest, of course, that judicial review is not the core respon-
sibility of the judiciary, or that judicial review of all executive actions
would impair the executive’s obligation to faithfully execute the laws.
But where the executive’s discretionary functions are at issue, inter-
20 MCMELLON v. UNITED STATES

-- 20 of 85 --

ference from the judicial branch is inappropriate. The discretionary
function exception
articulate[s] a policy of preventing tort actions from becom-
ing a vehicle for judicial interference with decisionmaking
that is properly exercised by other branches of government.
. . . Statutes, regulations, and discretionary functions, the
subject matter of § 2680(a), are, as a rule, manifestations of
policy judgments made by the political branches. In our tri-
partite governmental structure, the courts generally have no
substantive part to play in such decisions. Rather the judi-
ciary confines itself . . . to adjudication of facts based on
discernible objective standards of law. In the context of tort
actions, . . . these objective standards are notably lacking
when the question is not negligence but social wisdom, not
due care but political practicability, not reasonableness but
economic expediency. Tort law simply furnishes an inade-
quate crucible for testing the merits of social, political, or
economic decisions.
Blessing v. United States, 447 F. Supp. 1160, 1170 (E.D. Pa. 1978)
(Becker, J.) (footnote omitted).
Because our structural separation of powers is "a self-executing
safeguard against the encroachment or aggrandizement of one branch
at the expense of another," Buckley, 424 U.S. at 122, we must read
the SIAA in a way that is consistent with those principles. See Limar
Shipping, Ltd. v. United States, 324 F.3d 1, 7 (1st Cir. 2003) (apply-
ing discretionary function exception to SIAA and explaining that the
"[a]bsence of an express Congressional directive to the contrary will
not be read as a green light for federal courts to assume power to
review all administrative and legislative decisions concerning the
public interest in maritime matters") (internal quotation marks omit-
ted); Sea-Land Serv., 919 F.2d at 891 ("We understand Varig to teach
that, as a matter of judicial construction, we should not read a general
waiver of sovereign immunity to include a waiver of immunity with
respect to damage occasioned by policy decisions. Accordingly, we
hold that the SAA, which explicitly contains only a general waiver,
also implicitly contains a discretionary function exception to its
waiver of sovereign immunity."); In re Joint Asbestos Litig., 891 F.2d
21 MCMELLON v. UNITED STATES

-- 21 of 85 --

at 35 ("[W]e find the SAA to be subject to the discretionary function
exception. This result is compelled by our steadfast refusal to assume
powers that are vested in the concurrent branches."); Canadian Trans-
port Co. v. United States, 663 F.2d 1081, 1086 (D.C. Cir. 1980)
(explaining that the discretionary function exception is "derived from
the doctrine of separation of powers, a doctrine to which the courts
must adhere even in the absence of an explicit statutory command
. . . . Our recognition of a discretionary function exception in the Suits
in Admiralty Act, therefore, is not an attempt to rewrite the statute,
but merely an acknowledgment of the limits of judicial power.").
Accordingly, like the other circuits to have considered the question,
we now conclude that separation-of-powers principles require us to
read into the SIAA’s waiver of sovereign immunity a discretionary
function exception.5
5By our decision today, we do not mean to suggest that all waivers of
sovereign immunity must be subject to either an express or implied dis-
cretionary function exception. We do not doubt that Congress could
enact a statutory framework so specific in its detail that the Executive
branch would have no discretion when executing that law and that such
a statute would pass constitutional muster. Governmental liability under
such a scheme clearly would not include a discretionary function excep-
tion, because the Executive branch was in fact not vested with discretion.
Cf. Berkovitz v. United States, 486 U.S. 531, 536 (1988) ("[T]he discre-
tionary function exception will not apply when a federal statute, regula-
tion, or policy specifically prescribes a course of action for an employee
to follow. In this event, the employee has no rightful option but to adhere
to the directive. And if the employee’s conduct cannot appropriately be
the product of judgment or choice, then there is no discretion in the con-
duct for the discretionary function exception to protect."). But the ability
to withhold discretion in the first instance does not necessarily mean that
Congress may undermine discretion affirmatively granted to the Execu-
tive branch through the imposition of boundless tort liability. That is to
say that in areas where Congress has vested the Executive with discre-
tion, we are not as certain that Congress could waive sovereign immunity
and expressly provide that no exception to the waiver of immunity shall
be made for the Executive’s performance of discretionary acts. In our
view, such a statute might be subject to a constitutional challenge on
separation-of-powers grounds. Because the SIAA is silent on the ques-
tion of a discretionary function exception, we need not and do not con-
sider whether such a withdrawal of immunity would be constitutional.
22 MCMELLON v. UNITED STATES

-- 22 of 85 --

We pause to note, however, that this conclusion is not as obvious
as the cursory analysis of some opinions from other circuits might
suggest. We have just explained our belief that the discretionary func-
tion exception embodies separation-of-powers principles that are
important enough to require courts to apply a discretionary function
exception to statutes that are silent on the issue. Under that analysis,
then, one would expect to find cases from the early days of the SIAA
and PVA where the courts refused to impose liability on the govern-
ment for its conduct of discretionary functions. After all, judicial rec-
ognition of the inherent constraints of our constitutional structure is
hardly new. The early case law, however, is more equivocal on this
score than might be expected.
Certainly there are some early cases where courts using separation-
of-powers-like language have questioned the wisdom of holding the
government liable for the actions at issue in those cases. For example,
in Mandel v. United States, 191 F.2d 164 (3rd Cir. 1951), aff’d sub
nom. Johansen v. United States, 343 U.S. 427 (1952), the court con-
sidered a claim filed under the PVA by the estate of a civilian
employee killed when the vessel to which he was assigned hit a mine
in an Italian port during World War II. After concluding that the
estate’s sole remedy was under the Federal Employees Compensation
Act, see id. at 166, the court stated that
it would not be in the public interest to have judicial review
of the question of negligence in the conduct of military, or
semi-military, operations. The operation of ships or land
forces in the presence of the enemy is a matter where judg-
ments frequently have to be made quickly and where judg-
ments so made by commanding officers must have prompt
and immediate response. It will not, we think, aid in the
operation of the armed forces if the propriety of a command-
er’s judgment is to be tested months or years afterwards by
a court or a court and jury. What, in the light of subsequent
events, may appear to be a lack of caution may have been
the very thing necessary, or apparently necessary, at the
time the action was taken.
. . .
23 MCMELLON v. UNITED STATES

-- 23 of 85 --

. . . . No judge has it as part of his task to act as an intelli-
gence officer for the armed forces. He cannot tell how the
facts developed out of one incident, seemingly isolated and
unimportant, may fit into a larger picture worked upon by
an active and skilled hostile espionage system. We do not
think he should be called upon to pass upon such a question.
Id. at 167, 168.
The Third Circuit articulated a similar analysis in P. Dougherty Co.
v. United States, 207 F.2d 626 (3rd Cir. 1953) (en banc). In Dou-
gherty, a private barge was damaged in a collision, and a Coast Guard
cutter was sent to tow the barge to a harbor. Problems arose as the
cutter approached the harbor with the barge in tow, and the cutter was
eventually forced to cut the towing hawser. Adrift, the barge pounded
against a breakwater for almost an hour and suffered substantial dam-
age. The Third Circuit determined, for several reasons, that while the
Coast Guard was negligent, that negligence did not give rise to liabil-
ity on the part of the government. The court went on to say that public
policy prevents the government from being held liable under the PVA
"for fault of the Coast Guard in the conduct of a rescue operation at
sea." Id. at 634. The court explained:
There are two arrows in the quiver of this public policy. The
first may be directed to the inevitable consequence on the
morale and effectiveness of the Coast Guard if the conduct
of its officers and personnel in the field of rescue operations
under the indescribable strains, hazards and crises which
attend them, is to be scrutinized, weighed in delicate balance
and adjudicated by Monday-morning judicial quarterbacks
functioning in an atmosphere of Serenity and deliberation
far from the madding crowd of tensions, immediacy and
compulsions which confront the doers and not the review-
ers.
. . . . A judicial determination that officers or men of the
Coast Guard have been negligent in rescue operations would
inevitably have a concomitant effect upon their service
records. Aware of that fact, the instinct of self-preservation
would inevitably function even under the pressures of life or
24 MCMELLON v. UNITED STATES

-- 24 of 85 --

death crises which so often arise in rescue operations when
members of the Coast Guard are called upon to make deci-
sions. If men are to be brought to an abrupt halt in the midst
of crisis—to think first that if they err in their performance
they may expose their Government to financial loss and
themselves to disciplinary measures or loss of existing sta-
tus, and then to pause and deliberate and weigh the chances
of success or failure in alternate rescue procedures, the delay
may often prove fatal to the distressed who urgently require
their immediate aid. Thus would the point of the second
arrow in the quiver of public policy be blunted- the arrow
which is directed to preserve in the public interest our mer-
chant marine and that of other nations with which we trade.
History establishes that tragic losses in men and ships all
too frequently attend disasters at sea, and too often is it
impossible to give successful succor despite the most gallant
and efficient of efforts. To expose the men in the Coast
Guard to the double jeopardy of possible loss of their own
lives, and loss of status in their chosen careers, because they
failed, in coping with the intrinsic perils of navigation, to
select the most desirable of available procedures, or their
skill was not equal to the occasion, is unthinkable and
against the public interest.
Id. at 634-35 (footnotes omitted).
Thus, both Mandel and Dougherty seem to apply what amounts to
a discretionary function exception.6 However, there is little indication
in these opinions that the courts were considering the broader ques-
tion of whether it is ever appropriate for a court to hold the govern-
ment liable for its discretionary functions.
On the other hand, there are cases decided under the pre-1960
SIAA or PVA where the government’s potential liability was deter-
6Although the Supreme Court affirmed Mandel, the Court considered
only whether the Federal Employees Compensation Act provided the
exclusive remedy; the Court did not address the Third Circuit’s discre-
tionary function analysis. See Johansen, 343 U.S. at 431-41.
25 MCMELLON v. UNITED STATES

-- 25 of 85 --

mined by a straightforward application of common law principles,
without mention of a discretionary function exception, even though
the circumstances of the cases would seem to at least warrant a dis-
cussion of the possibility of such an exception. For example, in McAl-
lister v. United States, 348 U.S. 19 (1954), the Supreme Court
concluded that the government was liable under the SIAA to a sea-
man who contracted polio while serving on a ship located in Chinese
waters in the fall of 1945, shortly after the World-War-II surrender of
Japan. The government knew that polio was then prevalent in Shang-
hai, and the Court concluded that the government’s decision to allow
Chinese soldiers and stevedores from Shanghai "to have the run of the
ship and use of its facilities" supported the district court’s determina-
tion that the government was negligent. Id. at 21. There was no con-
sideration of the possibility that the government’s actions might fall
within a discretionary function exception to the SIAA’s waiver of
sovereign immunity.
Likewise, in Canadian Aviator, Ltd. v. United States, 324 U.S. 215
(1945), the crew of a Navy patrol boat during World War II instructed
a private vessel that the patrol boat would escort it into the Delaware
Bay. As the private vessel followed the patrol boat directly astern, as
ordered by the Navy crew, the private vessel struck a submerged
wreck and was damaged. The owner of the private vessel sued the
government under the PVA, arguing that the collision was caused by
the negligence of the Navy crew. The issue before the Supreme Court
was whether the PVA extended to claims where the damage was
caused by the crew of a public vessel rather than by the public vessel
itself. The Supreme Court concluded that the PVA did extend to such
claims, and the Court therefore vacated the decision of the appellate
court and remanded for further proceedings. See id. at 224-25. The
factual setting of Canadian Aviator—the actions of a Navy patrol
boat during war—would seem to make the case a good candidate for
consideration of a discretionary function exception. But there is no
indication in the opinions of the district court, the court of appeals,
or the Supreme Court that the possibility of such an exception was
ever suggested by the government or considered by the courts.
Likewise, there are several older circuit-court cases where the fac-
tual setting would seem to warrant consideration of a discretionary
function exception, yet the opinions are silent in that regard. See
26 MCMELLON v. UNITED STATES

-- 26 of 85 --

United States v. The S.S. Washington, 241 F.2d 819, 821 (4th Cir.
1957) (concluding that government and private vessel were both at
fault for collision between private vessel and Navy destroyer that was
returning to its position in a flotilla of Navy vessels after completing
a mission to pick up soldiers; possibility of a discretionary function
exception was not discussed); Pacific-Atlantic S.S. Co. v. United
States, 175 F.2d 632, 642 (4th Cir. 1949) (concluding that govern-
ment was not at fault in collision between private vessel and Navy
battleship which, "[d]ue to war conditions," was zig-zagging and
operating without lights; court did not consider the possibility of a
discretionary function exception); United States v. The Australia Star,
172 F.2d 472, 476 (2nd Cir. 1949) (concluding that, with regard to
1944 collision between the S.S. Hindoo and the S.S. Australian Star,
the United States naval vessel that was escorting the Hindoo was par-
tially responsible for the collision; no discussion of a possible discre-
tionary function exception even though duty of commander of Navy
escort was "to do what . . . would safeguard the Hindoo" and the com-
mander "had authority to give an emergency war time order to any
Allied merchant vessel").
The ambiguity of the pre-1960 cases with regard to a broad discre-
tionary function exception to the SIAA or PVA could indicate that,
at least in the view of early courts, the exception was not warranted
in maritime cases. But since some admiralty actions were cognizable
under the FTCA before the 1960 SIAA amendments, it is clear that
a discretionary function exception is not per se inappropriate or
unwarranted in the maritime arena. Alternatively, the relative silence
of the pre-1960 cases with regard to a discretionary function excep-
tion under the SIAA or PVA could indicate that there is something
about those particular claims that warrants different treatment. That
is, it could be that the nature of claims that were never cognizable
under the FTCA and have always been cognizable only under the
SIAA or the PVA is such that it would rarely be appropriate to apply
a discretionary function exception as to those cases. If that were the
case, then perhaps the discretionary function exception that we
believe must be read into the SIAA should be limited to those claims
that, before the 1960 amendments, were cognizable only under the
FTCA. Claims that could have been brought under the SIAA before
it was amended would not be subject to the exception.
27 MCMELLON v. UNITED STATES

-- 27 of 85 --

We cannot, however, conceive of a difference in the nature of the
claims that were cognizable under the FTCA and those that were cog-
nizable only under the SIAA or the PVA that is substantial enough
to warrant such a result. Broadly speaking, the PVA and pre-1960
SIAA applied to claims involving government vessels, public or mer-
chant. Thus, the cases that were cognizable under the FTCA were
those cases where the injury was not caused by a government vessel
or its crew yet still fell within the admiralty jurisdiction of the federal
courts. If anything, it seems that cases involving public or merchant
vessels are more likely to involve the executive’s discretionary func-
tions into which the judiciary should not intrude.
More importantly, however, any such limitation on the application
of the discretionary function exception would give too much effect to
the ambiguity of pre-1960 case law. While it may be that the pre-
amendments courts did not consider the possibility of some form of
a discretionary function exception because such an exception was not
viewed as appropriate, the failure to address the issue could just as
easily be attributed to some other factor—for example, the govern-
ment’s failure to press the issue. In any event, we do not believe that
we can subordinate compelling separation-of-powers concerns to the
ambiguous silence of the early SIAA and PVA cases. Accordingly,
we conclude that a discretionary function exception applies to all
cases brought under the SIAA, without regard to whether the claims,
prior to the 1960 amendments, would have been brought under the
FTCA or the SIAA.7
7When taking issue with our conclusion in this regard, our dissenting
colleague Judge Luttig fails to acknowledge that our resolution of this
issue is the same as that of every circuit to have considered the issue—
ten other circuits at last count. It is of course possible that everyone else
is wrong and our dissenting colleague is right, but we take some comfort
in the fact that Congress has made no effort to override this view. We
are well aware of the "danger of placing undue reliance on the concept
of congressional ‘ratification,’" Patterson v. McLean Credit Union, 491
U.S. 164, 175 n.1 (1989), that is, of concluding that congressional failure
to amend a statute in response to a line of cases amounts to congressional
approval of the line of cases. Nonetheless, we note that the first case to
explicitly apply the discretionary function exception to actions under the
SIAA was decided in 1976, see Gercey v. United States, 540 F.2d 536
28 MCMELLON v. UNITED STATES

-- 28 of 85 --

We now turn to one final point with regard to the scope of the
SIAA’s discretionary function exception. At oral argument, counsel
for the plaintiffs suggested that the exception as it has developed
under the FTCA has strayed beyond that which is required by
separation-of-powers principles. That is, counsel contends that courts
have applied the exception to exonerate the government from cases
where an imposition of liability would not have been inconsistent
with separation-of-powers principles. Thus, counsel argues that this
court should not read into the SIAA an exception that is co-extensive
with the exception as applied under the FTCA, but that we should
instead hold that the SIAA is subject to a discretionary function
exception only and to the precise extent necessary to serve the princi-
ples of separation of powers. If imposition of liability in any given
case would not be offensive to separation-of-powers principles, then
the government’s conduct should not be excused, even if case law
developed under the FTCA would characterize the government’s
action as falling within the discretionary function exception.8
(1st Cir. 1976), the separation-of-powers rationale for applying the dis-
cretionary function exception to cases under the SIAA was clearly articu-
lated by at least 1980, see Canadian Transp. Co. v. United States, 663
F.2d 1081 (D.C. Cir. 1980), and the courts have spoken in a strong and
(now) unified voice since then. If import can ever be attached to congres-
sional inaction, we think it would be in this case. If our approach were
as misguided as the dissent believes it to be, it seems likely that Congress
would have taken some action by now. Cf. Franklin v. Gwinnett County
Pub. Schs., 503 U.S. 60, 73 (1992) (noting swift congressional action to
correct what Congress perceived to be an "unacceptable decision" inter-
preting Title IX).
8We understand Judge Luttig in his dissent to harbor a similar concern.
According to the dissent, application of the political question doctrine
would be sufficient to resolve any separation-of-powers questions that
might arise in any given case under the SIAA. Our colleague believes
that by adopting a discretionary function exception to the SIAA we have
unwisely jettisoned the "cautious case-by-case analysis" required under
the political question doctrine, infra at 84, in favor of an overinclusive
categorical exception. We note, however, that determining whether the
facts of a case fit within the scope of the discretionary function exception
itself involves a cautious case-by-case analysis. See, e.g., Shansky v.
United States, 164 F.3d 688, 692-93 (1st Cir. 1999) ("We do not suggest
29 MCMELLON v. UNITED STATES

-- 29 of 85 --

At bottom, counsel’s argument reflects a concern that the discre-
tionary function exception has been applied too broadly under the
FTCA and that it will likewise be applied too broadly under the
SIAA. While it may be that courts have in some instances applied the
FTCA’s discretionary function exception more broadly than Congress
intended or than might be strictly required under separation-of-powers
principles, these occasional judicial errors do not warrant a wholesale
retreat from a body of law that has been developed and refined over
the course of almost fifty years. As we have explained, separation-of-
powers principles require us to read a discretionary function excep-
tion into the SIAA, and it was those same separation-of-powers con-
cerns that drove Congress to create the discretionary function
exception to the FTCA. See Varig Airlines, 467 U.S. at 808 (explain-
ing that the discretionary function exception "marks the boundary
between Congress’ willingness to impose tort liability upon the
United States and its desire to protect certain governmental activities
from exposure to suit by private individuals"). In our view, the discre-
tionary function exception as it has been developed and applied under
the FTCA is the best embodiment of those separation-of-powers con-
cerns, and we believe that it is therefore appropriate for FTCA cases
to guide the application of the exception under the SIAA.
V.
To summarize, we adhere to the rule previously applied in this cir-
cuit that requires a panel of this court faced with conflicting panel
opinions to follow the earlier case. On the merits of the issue raised
that any conceivable policy justification will suffice to prime the discre-
tionary function pump. . . . [T]he determination as to where one draws
the line between a justification that is too far removed, or too ethereal,
or both, and one that is not, is case-specific, and not subject to resolution
by the application of mathematically precise formulae."). We recognize
that applying a discretionary function exception to claims under SIAA
may well result in the exoneration of the government more frequently
than would application of the political question doctrine. Nonetheless,
given our view (one with which the dissent strongly disagrees) that the
discretionary function exception reflects fundamental separation-of-
powers principles, we do not believe that the possibility of fewer prevail-
ing plaintiffs warrants a different conclusion.
30 MCMELLON v. UNITED STATES

-- 30 of 85 --

by the government, we conclude that, although the statute is silent on
the issue, the SIAA must be read to include a discretionary function
exception to its waiver of sovereign immunity. We hereby overrule
Lane v. United States, 529 F.2d 175 (4th Cir. 1975), to the extent that
it concluded that a discretionary function exception does not apply to
cases brought under the SIAA. Because the discretionary function
exception under the FTCA and the exception that we apply today to
the SIAA are both grounded in concerns of separation of powers, the
scope of the discretionary function exception under the SIAA should
mirror that of the FTCA, and discretionary function cases decided
under the FTCA should guide decisions under the SIAA. The district
court in this case concluded as a legal matter that a discretionary func-
tion exception was not available to the government in this case, and
the court therefore did not consider whether the facts of the case war-
ranted application of such an exception. Accordingly, we vacate the
order of the district court and remand to give the district court the
opportunity to decide in the first instance whether the discretionary
function exception we recognize today precludes the plaintiffs’ claims
and to conduct any other proceedings that might become necessary.9
VACATED AND REMANDED
WILKINSON, Circuit Judge, concurring:
I am happy to concur in Judge Traxler’s fine opinion in this case.
The court holds today that the Suits in Admiralty Act (SIAA), 46
U.S.C.A. §§ 741-52 (West 1975 & Supp. 2003), is subject to an
exception similar to the discretionary function exception embodied in
the Federal Tort Claims Act (FTCA), 28 U.S.C.A. §§ 2671-80 (West
1994 & Supp. 2003). I write simply to state my view that any differ-
ent result would not be supportable.
Tort liability will certainly lie against the United States under the
SIAA. After all, that is the point of any waiver of immunity in the
9Because we vacated the panel opinion upon the granting of the gov-
ernment’s petition for rehearing en banc, the panel opinion’s discussion
of the duty-to-warn question is no longer binding authority. The district
court is free to consider the duty-to-warn issue de novo, should it arise
again on remand.
31 MCMELLON v. UNITED STATES

-- 31 of 85 --

first place. It may well be that the discretionary function exception is
inapplicable on the facts of this case. But appellants ask us to go
much, much farther — to indulge in effect the broadest possible
waiver of sovereign immunity for the performance of every discre-
tionary governmental function and to disregard the principle that such
waivers of immunity must be narrowly construed. See Lane v. Pena,
518 U.S. 187, 192 (1996); United States Dep’t of Energy v. Ohio, 503
U.S. 607, 615 (1992); McMahon v. United States, 342 U.S. 25, 27
(1951). When we address the scope of a sovereign immunity waiver,
the Supreme Court requires us to take a cautious approach, not a
sweeping and momentous one.
The majority’s action is not one of impermissible judicial implica-
tion. There is nothing implicit about the separation-of-powers con-
cerns that underlie the discretionary function exception, concerns that
we are obliged to honor even in the absence of a statutory directive.
See, e.g., Robinson v. United States (In re Joint E. & S. Dists. Asbes-
tos Litig.), 891 F.2d 31, 35 (2d Cir. 1989); Canadian Transport Co.
v. United States, 663 F.2d 1081, 1086 (D.C. Cir. 1980). The executive
has an explicit, not an implicit, duty to see that the laws are faithfully
executed. See U.S. Const. art. II, § 3. This duty cannot be discharged
without the exercise of some discretion. For the court to subject every
such discretionary act to the prospect of tort liability would not only
be to undercut an explicit constitutional command; it would wrongly
assign to Congress the desire to debilitate the executive branch. The
discretionary function exception is thus implied only in the same
sense that the doctrine of qualified immunity is implied in the inter-
pretation of 42 U.S.C. § 1983 — on the premise that without the abil-
ity to exercise some element of judgment in the execution of law,
neither federal, state, nor local government could function.1
1Of course, qualified immunity is an example of "reading into" a stat-
ute a degree of immunity in order to satisfy, among other things,
separation-of-powers concerns. The dissent (references are to my brother
Luttig’s dissent) contends that SIAA suits will pose no problem so long
as personal liability to the executive actor does not attach. See dissenting
op. at 61-63 n.4. To the contrary, protracted litigation imposes enormous
costs if applied to the discharge of the innumerable policy-laden matters
assigned by Congress to the executive branch. My dissenting colleagues
appear to suggest that separation-of-powers principles are never impli-
cated unless a coordinate branch of government is all but immobilized
— a reading of separation-of-powers I respectfully reject.
32 MCMELLON v. UNITED STATES

-- 32 of 85 --

The language that this court applies today is not language that the
judiciary has somehow made up on its own. Rather, the Court adopts
Congress’s own explicit expression of separation-of-powers princi-
ples in 28 U.S.C. § 2680(a). See United States v. S.A. Empresa de
Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814
(1984) (recognizing that FTCA’s discretionary function exception
was Congress’s attempt "to prevent judicial ‘second-guessing’ of leg-
islative and administrative decisions grounded in social, economic,
and political policy"). The fact that we have at hand such a carefully
crafted expression of separation-of-powers principles from a coordi-
nate branch of government rebuts any suggestion that the court is
somehow on a statutory frolic of its own.
The dissent attempts to say that Varig Airlines, and by extension
the discretionary function exception itself, is not an expression of
separation-of-powers principles. See dissenting op. at 67. Even in our
modern age, however, some things are indeed what they seem. The
discretionary function exception expresses Congress’ view of that
degree of "separation" required by the executive branch to carry out
its duties. It further underscores the need for judicial forbearance in
the face of policy-laden decisions made by the coordinate branches of
our government. These are classic separation-of-powers concerns.
Not surprisingly, then, our court and our sister circuits have inter-
preted Varig Airlines to embody separation-of-powers principles. See,
e.g., Tiffany v. United States, 931 F.2d 271, 276 (4th Cir. 1991);
Irving v. United States, 162 F.3d 154, 160 n.4 (1st Cir. 1998); In re
Joint E. & S. Dists. Asbestos Litig., 891 F.2d at 35; Wiggins v. United
States, 799 F.2d 962, 965-66 (5th Cir. 1986).
The majority’s action thus heeds not only the executive’s constitu-
tional prerogatives, but Congress’s respect for those prerogatives as
well. It is difficult to imagine that Congress was seeking to eliminate
executive branch discretion in the execution of what are, after all,
Congress’s own policy mandates and directives. See Berkovitz v.
United States, 486 U.S. 531, 537 (1988) (finding that discretionary
function exception protects "governmental actions and decisions
based on considerations of public policy"). A failure to recognize any
discretionary function would allow the deterrent effect of tort liability
in those very areas where Congress has mandated an active executive
role. Shorn of a discretionary function exception, the executive
33 MCMELLON v. UNITED STATES

-- 33 of 85 --

branch would be profoundly impaired in carrying out the very func-
tions that Congress has assigned to it.
Nor is it easy to imagine that the SIAA somehow sought to disable
the executive branch from invoking separation-of-powers principles
via its discretionary functions as a defense to unlimited tort liability.
Without the defense, the United States would be subject not only to
constitutional constraints, but under the SIAA to tort duties and negli-
gence actions, for attempts to enforce immigration law; to intercept
narcotics-smuggling; to protect its airspace from hostile, incoming
aircraft; and to safeguard its harbors from biological agents in con-
tainer cargo. "Were there no such immunity for basic policy making
decisions, all administrative and legislative decisions concerning the
public interest in maritime matters would be subject to independent
judicial review in the not unlikely event that the implementation of
those policy judgments were to cause private injuries." Gercey v.
United States, 540 F.2d 536, 539 (1st Cir. 1976).
The dissent speaks so derisively of the discretionary function
exception that perhaps it would find no impediment to judicial consid-
eration of the countless policy judgments attendant to armed warfare
at sea. After all, ascertainable standards for the resolution of such
questions may well exist. See dissenting op. at 69-70. In In re Joint
E. & S. Dists. Asbestos Litig., the Second Circuit in 1989 faced a chal-
lenge under the SIAA to President Roosevelt’s use of asbestos in the
construction of ships for the merchant marine in World War II. 891
F.2d at 33-34. Dismissing the suit under the discretionary function
exception, the court noted:
The fact that the challenged actions were matters of choice
cannot be overcome by clothing the discretionary acts in the
maritime uniform of a breach of a duty to provide a seawor-
thy vessel. We are unwilling to declare that during a world
war, when ships were being sunk by the enemy as fast as
they could be constructed, it was impermissible for the gov-
ernment to choose to deploy ships in less than seaworthy
condition. We need spend little time discussing whether the
contested choices involved considerations of public policy.
It is difficult to imagine a clearer example of a decision
34 MCMELLON v. UNITED STATES

-- 34 of 85 --

grounded in social, economic, and political policy than the
choice of how to prosecute a world war.
Id. at 37 (internal quotations and citation omitted).
Toward the end of his opinion, my dissenting colleague attempts
to crawl back from the far limb. "I agree," he says, "that the SIAA
may well authorize some suits that call upon the courts to make politi-
cal judgments that they are neither prepared to make, nor capable of
competently making." Dissenting op. at 70. But while the dissent pro-
fesses to recognize the same concerns as the majority, its answer is
to jettison congressional language tailored to this very context — gov-
ernmental tort liability — in favor of the all-purposive political ques-
tion doctrine. The dissent thus commits, in even more serious fashion,
the same sin that it seeks to ascribe to the majority. It concedes that
a blanket waiver of immunity would run headlong into a constitu-
tional problem, but it refuses to respect Congress’s solution to that
problem. The dissent’s substitution of a judicially-derived doctrine for
congressionally-crafted language makes for a truly anomalous statu-
tory scheme: executive officials could be liable for discretionary func-
tions, but only in admiralty.
The dissent thus advocates a free-floating separation-of-powers
approach, which might be necessary in a context where courts had no
other alternative. Here, however, there is most certainly an alterna-
tive: Congress’s adoption of a discretionary function test in the
FTCA, combined with Congress’s refusal to disturb many decades of
unanimous judicial interpretation relying on that same
congressionally-grounded test in the SIAA. See majority op. at 28-29
n.7. To upend this settled scheme serves no purpose whatsoever, par-
ticularly when no practical reason for differentiating between the
FTCA and the SIAA has ever been advanced. While my dissenting
colleague may make all sorts of assumptions about whether I would
or would not dismiss this case under the discretionary function excep-
tion, the point is that the answer lies in the scope of the exception to
governmental tort liability, not in a generalized application of the
political question doctrine.
In the end, it makes sense to reflect on the sheer enormity of what
appellants and our dissenting colleagues ask the court to do. They
35 MCMELLON v. UNITED STATES

-- 35 of 85 --

would have us strip the government of a discretionary function
defense in the face of the considered wisdom of ten other circuit
courts of appeals, each of which has held the discretionary function
exception applicable to the SIAA. See majority op. at 13-14. They
would do so in a context where sovereign prerogatives can be salient
and where uniformity of interpretation would seem an imperative.
They would have us adopt discordant approaches to two companion
acts. And they would fasten upon the government the broadest con-
ceivable waiver of its own separation-of-powers defenses, in deroga-
tion of the principle that sweeping waivers of immunity should not be
casually assumed. See Dep’t of the Army v. Blue Fox, Inc., 525 U.S.
255, 261 (1999). Whether the discretionary function exception applies
on these facts is rightly left to the district court upon remand. But our
failure to recognize any exception whatsoever would set us on an
aggressive course far afield of judicial competence and replete with
matters of policy entrusted elsewhere. The court’s opinion rightly
rejects that option.2
NIEMEYER, Circuit Judge, concurring in part and dissenting in part:
After concluding that this court, sitting en banc, has the power to
overrule the decision of a three-judge panel — a proposition with
which I agree — the majority undertakes in Part II, sua sponte and
without request or briefing by the parties, to determine as a supple-
ment to our rule that one three-judge panel may not overrule another,
see Booth v. Maryland, 327 F.3d 377, 383 (4th Cir. 2003), that a
three-judge panel confronted with two prior conflicting opinions must
follow the earlier and "ignore" the later because the later opinion
failed to follow the earlier opinion, ante at 6.
It is astounding to me that the majority finds itself free to decide
2My friend in dissent says that I am guilty of "considerable overstate-
ment." Dissenting op. at 62 n.4; see also id. at 71 n.6. He tops off the
point by asserting that the majority’s agreement with ten other circuits
is "one of the most far-reaching and obviously illegitimate (as a matter
of established constitutional doctrine) of any separation-of-powers analy-
sis that [he has] encountered during [his] time on the federal bench." Id.
at 54. Not to overstate the matter, but this assertion does cover a wee bit
of ground.
36 MCMELLON v. UNITED STATES

-- 36 of 85 --

issues neither raised by the case nor presented by the parties simply
because it believes them important. And it is yet more astounding to
me that the majority has announced in this advisory portion of its
opinion the rule that panels of this court must follow the earliest of
any prior conflicting opinions, when the majority itself acknowledges
that "application of this rule does require a panel to effectively ignore
certain opinions duly decided by a properly constituted panel of the
court." Ante at 6. In announcing this rule the majority purports — ille-
gitimately, I submit — to strip three-judge panels of judicial power
and to abrogate longstanding aspects of the doctrine of stare decisis.
One must ask now what the status is of a "duly decided" case that
must yet be "ignored" under the majority’s principle. Is the relief
granted or the mandate issued to be ignored? Does a plaintiff have to
return the money awarded it in the illegitimate case? Would a district
court act ultra vires in following or in ignoring the mandate? Most
importantly, where do we derive the authority to determine as a mat-
ter of rule that the duly decided opinions of a properly constituted
panel of this court must be ignored by subsequent panels? It would
seem to me that we could apply this principle only after amending 28
U.S.C. § 46 and recharacterizing Article III of the U.S. Constitution.
As respectfully as I can say it, this sua sponte advisory decision
amounts to an unfortunate example of judicial hubris.
I
Carrie McMellon and her colleagues, who were injured when they
rode Jet Skis over the Robert C. Byrd dam on the Ohio River, com-
menced this action against the United States under the Suits in Admi-
ralty Act, alleging that the United States was negligent in failing
adequately to warn them of the dam. The district court rejected the
United States’ claim of sovereign immunity but concluded that the
United States had "no duty to erect warning signs to ensure safe navi-
gation." Accordingly, it entered summary judgment in favor of the
United States.
It is only this judgment, entered by the district court, that we, sit-
ting en banc, have been called upon to review on appeal. 4th Cir.
Local Rule 35(c). In response, we have appropriately concluded that
the United States has sovereign immunity under separation-of-powers
37 MCMELLON v. UNITED STATES

-- 37 of 85 --

principles, even though the Suits in Admiralty Act does not explicitly
recognize the immunity, and that we need not reach the question of
whether the United States owed the plaintiffs a duty to warn. In reach-
ing this conclusion, we have overruled our earlier decision in Lane v.
United States, 529 F.2d 175 (4th Cir. 1975).
In their briefs, the parties have raised no question concerning our
authority to overrule an earlier panel opinion. Nor have they raised
the question of whether one panel of this court may overrule another.
Even had they done so, our review would not require us to resolve the
issue. Whether one panel of this court constituted under 28 U.S.C.
§ 46 can overrule another so constituted is irrelevant to this en banc
review of the district court’s judgment. Accordingly, the majority acts
as a volunteer in expositing on this subject, and its exposition is at
best an advisory opinion on which the majority received no counsel
or briefing from the parties.
Early in its history, this Court held that it had no power to
issue advisory opinions . . . and it has frequently repeated
that federal courts are without power to decide questions
that cannot affect the rights of litigants in the case before
them.
North Carolina v. Rice, 404 U.S. 244, 246 (1971) (citing Hayburn’s
Case, 2 U.S. (2 Dall.) 409 (1792); Muskrat v. United States, 219 U.S.
346, 351-53 (1911)). One can only conclude therefore that to reach
this question, the majority has exceeded its judicial power.*
*The majority argues in footnote 1 that this issue is "in this case"
because it came before the three-judge panel that considered this case
earlier in its procedural history. That this issue actually arose before a
three-judge panel confronted with conflicting precedents does not, how-
ever, make it a live issue for this court en banc. The opinion of the three-
judge panel has been vacated, and this court en banc reviews the judg-
ment of the district court, not the three-judge panel. See 4th Cir. Local
Rule 35(c). The question of how a three-judge panel applies the doctrine
of stare decisis when confronted by earlier conflicting decisions of other
three-judge panels is not a controversy now before us, and our advisory
ruling on that issue does not "affect the rights of [the] litigants in the case
before [us]." Rice, 404 U.S. at 246. Obviously, the majority cannot mean
by its phrase "in this case" that this is a live issue presently before this
court.
38 MCMELLON v. UNITED STATES

-- 38 of 85 --

Even were the majority to consider its decision to fall within some
inherent rulemaking authority — a decision no less fraught with the
question of judicial power — such a rule would be totally ill-advised
and unnecessary. When we recognize that we render opinions on a
case-by-case basis, bringing to bear all applicable and available judi-
cial decisions previously decided, and that we can always resolve
intra-circuit splits by en banc rehearings, there simply can be no crisis
requiring the issuance of such a rule.
Thus, not only is there no crisis in this case, as the parties have not
even raised the issue, there is also no crisis in the way our court func-
tions generally to require the announcement of so dramatic a rule. Yet
the majority rationalizes the issuance of an advisory opinion that lim-
its constitutionally conferred judicial power as being "of utmost
importance to the operation of this court and the development of the
law in this circuit." Ante at 4. The mere issuance of such an opinion,
I regretfully observe, defies our limited charge for exercising the judi-
cial power.
II
Setting aside the fundamental propositions that courts must decide
only actual cases and controversies, not issues in the abstract, and that
courts deciding cases must themselves apply the governing principles
relating to their own jurisdiction and to stare decisis, I also submit
that the substance of the rule announced is as flawed as the basis for
issuing it. The majority holds that "application of the basic rule that
one panel cannot overrule another requires a panel to follow the ear-
lier of the conflicting opinions," ante at 5, and requires the panel "to
effectively ignore certain opinions duly decided by a properly consti-
tuted panel of the court," ante at 6. As a matter of judicial power,
however, such a rule cannot be required. In addition, such a rule,
properly considered as a discretionary rule, is not even desirable, in
that it forces courts to apply stare decisis in a narrow and mechanical
way, without all of the doctrine’s permutations and well-established
exceptions.
The authority to decide cases falls within the judicial power articu-
lated in Article III and implemented by the Judiciary Act. Thus, for
example, when judicial power is conferred on the Supreme Court to
39 MCMELLON v. UNITED STATES

-- 39 of 85 --

decide a case or controversy, it may do so even if it overrules one of
its earlier opinions. The limitation of that power is not mandated by
Article III, nor by the Judiciary Act, but by self-imposed principles
of stare decisis and tradition. "Stare decisis is the preferred course
because it promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judicial decisions,
and contributes to the actual and perceived integrity of the judicial
process." Payne v. Tennessee, 501 U.S. 808, 827 (1991). But while
stare decisis is a preferred course — a "principle of policy" — a court
is not required to follow its precedent "when governing decisions are
unworkable or are badly reasoned." Id. at 827-28. And the Supreme
Court in Payne noted that during the previous 20 terms, it had over-
ruled 33 cases. Id. at 828. Thus, a court has the judicial power to over-
rule its earlier rulings, but it constrains itself in order to create
stability and integrity in the law. Analogous notions of judicial
restraint are recognized also in the doctrine of the law of the case. See
Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 203 F.3d 291,
304 (4th Cir. 2000) (recognizing the law of the case as "a rule of dis-
cretion, not a jurisdictional requirement," which carries various
exceptions and limitations).
In 28 U.S.C. § 46, implementing Article III, Congress has con-
ferred judicial power on courts of appeals. Subsection (c) authorizes
the courts of appeals to function through panels of "not more than
three judges" or "the court in banc," and subject-matter jurisdiction is
conferred by 28 U.S.C. §§ 1291 and 1292. Thus, three-judge panels
are authorized to exercise the judicial power conferred on courts of
appeals, and that power includes the general power of the court to
overrule its own earlier decisions. Distinct three-judge panels are not
distinct courts. Rather, each panel operates with the full authority to
issue opinions for the court of appeals of which it is a constituent part.
This is not to say, however, that in applying that power prudential
rules should not be recognized to coordinate the decisions of the vari-
ous panels. Indeed, the Fourth Circuit has adopted the prudential rule
that a three-judge panel may not be overruled by a later panel, but
rather only by the court sitting en banc. Booth, 327 F.3d at 383. Not
only do I agree fully with these prudential rules of stare decisis, I find
them particularly helpful in promoting not only stability and integrity
in the law, but also a unity of jurisprudence for a court authorized to
40 MCMELLON v. UNITED STATES

-- 40 of 85 --

act in distinct panels. But the rule that one panel may not overrule
another is a court-adopted rule of prudence, not a limitation on consti-
tutionally conferred judicial power.
The majority, falsely perceiving such a limitation, enforces this
rule of prudence with the directive that a panel confronted with earlier
conflicting decisions must follow the earliest precedent and ignore the
later precedents that conflict with it, in effect declaring the later ones
to be illegitimate. Such a rule denies the later court the power con-
ferred on it by § 46 and strips the doctrine of stare decisis of all its
subtleties. Because § 46 authorizes a court of appeals to act fully
through the decisions of three-judge panels, every three-judge panel
has full judicial authority to decide a case, to rule on its jurisdiction,
and to apply stare decisis in the most nuanced manner that it deems
appropriate. If a panel exceeds its jurisdiction or violates established
principles of stare decisis or even resolves a prior conflict in a manner
unacceptable to the court as a whole, the court remains free to rehear
the case en banc as authorized by § 46, thereby obtaining the judg-
ment of every judge on the court. The majority does not indicate why
this mechanism, currently in place, is insufficient to ensure the stabil-
ity and integrity of our circuit jurisprudence. Instead, it takes the radi-
cal step of directing a panel to "ignore certain opinions duly decided
by a[n] [earlier] properly constituted panel." Ante at 6. Its decision is
thus both illegitimate and ill-advised.
Further, because two conflicting panel decisions are both constitu-
tionally legitimate, the majority’s rule not only inappropriately
restricts judicial authority, it also fails to fix the problem. Indeed, by
requiring a panel to discard the more recent of conflicting decisions,
the majority requires a panel to violate the rule that one panel cannot
overrule the other. Moreover, in the face of this necessary evil, the
majority does not even allow the latest panel to minimize the damage
created by the conflict by choosing the best rule. Instead, it must
mechanically follow the earliest decision, however incorrect and ill-
considered it might be.
Perhaps the majority characterizes its proposed policy as "required"
because it provides the only enforcement mechanism the majority can
conceive for the rule that a panel cannot overrule a prior panel. (It is
an enforcement mechanism in the sense that, under the majority’s
41 MCMELLON v. UNITED STATES

-- 41 of 85 --

rule, a panel that ignores a prior panel will itself be ignored by future
panels.) However, no rule requires an enforcement mechanism; with-
out one, it is still a rule. See H.L.A. Hart, The Concept of Law 10-11,
18-25 (2d ed. 1997). Rules merit adherence by virtue of their legiti-
macy, and their legitimacy is determined by their mode of enactment,
not enforcement. A panel’s obligation to follow decisions of prior
panels, derived from the doctrine of stare decisis, would not disappear
if there were no punishment for breaking this rule. The majority’s
holding is not, therefore, a corollary to the rule that panels cannot
overrule prior panels. Rather, it is an effort to strip subsequent panels
of the judicial authority conferred by the Constitution and the Judi-
ciary Act and to deny them the authority to decide what is best when
conflicts among earlier precedents appear.
Indeed, simply as a matter of policy, it would seem to me to be far
better for a panel faced with conflicting and equally valid authority
to be able to choose between them. See, e.g., Under Seal v. Under
Seal, 326 F.3d 479, 484 (4th Cir. 2003). First, as mentioned above,
the earliest panel decision may be simply wrong; it may plainly mis-
interpret a statute, for instance, or plainly conflict with other rules.
Even if the earlier decision seemed correct at the time it was rendered,
its soundness could be disturbed by other developments in the law.
Second, allowing a panel to choose between conflicting authority
would encourage the panel to more fully consider both prior opinions,
perhaps finding a way to distinguish and thus reconcile them after all.
Third, without a directive to follow the earliest opinion, the panel
would apprehend more readily the need to call for a rehearing en
banc, rather than allowing a flawed or incorrect rule to continue
indefinitely, simply because it came earliest in time. When two sepa-
rate panels of our circuit have come to opposite conclusions, the issue
over which they have split is likely an important and difficult one, and
it is best resolved with a rehearing en banc, not an uncritical reversion
to the earliest panel’s conclusion.
In vigorously disagreeing with the majority, I do not wish to be
understood as disagreeing with our court’s rule that in furtherance of
the doctrine of stare decisis one panel should not overrule another
panel and that panel opinions may be overruled only by an en banc
court. It is important, however, to understand the distinction between
a limitation on the judicial power of a panel and the prudential con-
42 MCMELLON v. UNITED STATES

-- 42 of 85 --

straint exerted by the doctrine of stare decisis. If we do not under-
stand and recognize such distinctions, we risk rewriting Article III
and the Judiciary Act to include all our common-law doctrines of
judicial prudence.
III
For the reasons given, I dissent from Part II of the majority opin-
ion. I concur in the remainder.
43 MCMELLON v. UNITED STATES

-- 43 of 85 --

Volume 2 of 2

-- 44 of 85 --

DIANA GRIBBON MOTZ, Circuit Judge, concurring in part and dis-
senting in part:
The majority holds that the statutory text and the legislative history
of the Suits in Admiralty Act (SIAA), 46 U.S.C. app. §§ 741-52
(2000), demonstrate that Congress did not exclude discretionary func-
tions from the SIAA’s express waiver of sovereign immunity. With
this conclusion, I completely agree.1 My colleagues proceed, how-
ever, to "read into" the SIAA sovereign immunity waiver a discretion-
ary function exception. Ante at 7, 14, 22, 29. Apparently, they believe
that separation-of-powers principles somehow preclude us from
applying the SIAA as it was "clear[ly] and unequivocal[ly]" written.
Id. at 24. From this holding, I must respectfully dissent.
I.
At first blush, I had thought that the Government’s arguments that
Congress intended to exclude discretionary acts from the SIAA’s
waiver of sovereign immunity might carry the day. After all, a num-
ber of our sister circuits have found such arguments persuasive. See,
e.g., Sea-Land Serv., Inc. v. United States, 919 F.2d 888, 890-91 (3d
Cir. 1990); Robinson v. United States (In re Joint E. & S. Dists.
Asbestos Litig.), 891 F.2d 31, 34-35 (2d Cir. 1989); Williams v.
United States, 747 F.2d 700 (11th Cir. 1984) (per curiam), aff’g, Wil-
liams ex rel Sharpley v. United States, 581 F. Supp. 847 (S.D. Ga.
1983); Canadian Transp. Co. v. United States, 663 F.2d 1081, 1086
(D.C. Cir. 1980).
1Accordingly, I join Part IV.A of the majority opinion; I also join Parts
I, II, and III; I dissent from Parts IV.B and V.
46 MCMELLON v. UNITED STATES

-- 45 of 85 --

The majority, however, engages in a far more nuanced analysis
than our sister circuits. Writing for the majority, Judge Traxler care-
fully examines not only the text and legislative history of the SIAA
and Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680
(2000), but also relevant canons of statutory construction. He con-
cludes that to hold Congress intended the SIAA waiver of sovereign
immunity "to be subject to an exception for discretionary functions"
would be untenable. Ante at 17. Judge Traxler’s thorough discussion
of these issues for the majority is completely persuasive; indeed, I
find his reasoning to be unassailable.
This holding would seem to me to end the matter. That the SIAA
waiver of sovereign immunity plainly does not include, and Congress
did not intend it to include, a discretionary function exception would
seem to require a court to simply apply the Act without the exception.
The majority’s insistence on "read[ing]" a discretionary function
exception "into" the SIAA, ante at 7, 14, 22, 29, particularly after its
excellent statutory analysis, puzzles me.
Of course, a court can "read into" an ambiguous statute a provision
necessary to save it from a declaration of unconstitutionality. See,
e.g., Zadvydas v. Davis, 533 U.S. 678, 689, 696-98 (2001) (reading
a reasonableness limitation into the Immigration and Nationality Act
in order to avoid its constitutional invalidation). In the case at hand,
however, the majority has expressly held the SIAA waiver of sover-
eign immunity is not ambiguous, but rather "clear and unequivocal."
Ante at 16. Thus, it cannot rely on the constitutional avoidance doc-
trine. See Dep’t of Hous. and Urban Dev. v. Rucker, 535 U.S. 125,
134 (2002) (holding that the doctrine of constitutional avoidance "has
no application in the absence of statutory ambiguity") (internal quota-
tion marks and citation omitted).
Absent reliance on this doctrine — or any indication (and there is
none here) that the plain meaning of a statute would lead to results
that are absurd or contrary to Congress’s purpose — judges have no
business "read[ing]" provisions "into" statutes. Ante at 7. Rather, the
Supreme Court has consistently recognized courts’ "duty to refrain
from reading a phrase into the statute when Congress has left it out."
Keene Corp. v. United States, 508 U.S. 200, 208 (1993); see, e.g.,
United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 490
47 MCMELLON v. UNITED STATES

-- 46 of 85 --

(2001) (refusing to "read into" the Controlled Substances Act a medi-
cal necessity defense available at common law); Dep’t of Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 15-16 (2001)
(refusing to "read an ‘Indian trust’ exemption into" the Freedom of
Information Act when there was "simply no support for the exemp-
tion in the statutory text"); Bates v. United States, 522 U.S. 23, 29-33
(1997) (refusing to "read[ ] . . . into" 20 U.S.C. § 1097(a) the "intent
to defraud" requirement of 20 U.S.C. § 1097(d) when "nothing in the
text, structure, or history of § 1097(a) warrant[ed] importation" of
such a requirement, and noting that "this Court ordinarily resists read-
ing words into a statute that do not appear on its face"); United States
Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 154 (1989) (refusing
to "read into" the Freedom of Information Act "a disclosure exemp-
tion that Congress did not itself provide"); Mackey v. Lanier Collec-
tion Agency & Serv., Inc., 486 U.S. 825, 836-37 (1988) (refusing to
"read into" ERISA § 514(a) a limitation expressly included in another
ERISA provision); Burlington N. R.R. Co. v. Bhd of Maint. of Way
Employees, 481 U.S. 429, 447 (1987) (refusing to "read . . . into the
silence of" the Railway Labor Act a limitation on union self-help that
existed at the time the Act became law); United States v. Pa. Indus.
Chem. Corp., 411 U.S. 655, 663-64 (1973) (refusing to "read into"
§ 13 of the Rivers and Harbors Act of 1899 a provision found else-
where in that Act and in the Rivers and Harbors Act of 1905).
In a holding especially relevant here, the Court rejected the view
of several courts of appeals and held that a "reasonably necessary"
qualification should not be "read into" a statutory provision. Hender-
son v. United States, 476 U.S. 321, 330 (1986). In another case that
resonates here, the Court refused to read into one statute an exception
from another "without an affirmative indication" that Congress
intended this, especially when doing so would, as here, "carve a sub-
stantial slice" from the statutory coverage. Erlenbaugh v. United
States, 409 U.S. 239, 247 (1972). Repeatedly, the Court has cautioned
that federal courts are simply "not at liberty to create an exception
where Congress has declined to do so." Hallstrom v. Tillamook Co.,
493 U.S. 20, 27 (1989); accord Freytag v. Comm’r of Internal Reve-
nue, 501 U.S. 868, 873-74 (1991).
In short, given the majority’s express holding that the evidence
here does not show that Congress intended to incorporate a discretion-
48 MCMELLON v. UNITED STATES

-- 47 of 85 --

ary function exception into the SIAA, Supreme Court precedent dic-
tates that we not "read into" the Act such an exception. Indeed, the
Court has stated that to do so absent any such evidence would "consti-
tute standardless judicial lawmaking." Roadway Express, Inc. v.
Piper, 447 U.S. 752, 762 (1980).
II.
Without acknowledgment of this binding precedent, the majority
relies only on asserted "separation-of-powers principles" to "read
into" the SIAA’s waiver of sovereign immunity a discretionary func-
tion exception. The majority finds support for its conclusion that
separation-of-powers principles require its extraordinary "reading in"
of a discretionary function exception in two sources. Neither provides
any basis for ignoring the established limits of the constitutional
avoidance doctrine or the Supreme Court’s repeated admonitions that
judges not read exceptions or qualifications into unambiguous stat-
utes.
A.
First, the majority looks to the Supreme Court’s decision in United
States v. S.A. Empressa de Viacao Aerea Rio Grandense (Varig Air-
lines), 467 U.S. 797, 808 (1984). There, the Court discussed the pol-
icy concerns motivating Congress to include an express discretionary
function exception in the FTCA waiver of sovereign immunity, as fol-
lows:
Congress wished to prevent judicial ‘second-guessing’ of
legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an
action in tort. By fashioning an exception for discretionary
governmental functions, including regulatory activities,
Congress took steps to protect the Government from liability
that would seriously handicap efficient government opera-
tions.
Id. at 814 (internal quotation and citation omitted).
49 MCMELLON v. UNITED STATES

-- 48 of 85 --

From this statement, the majority draws two conclusions: (1) the
statement assertedly "makes it clear that the [express discretionary
function] exception [in the FTCA] is a statutory embodiment of [con-
stitutional] separation-of-powers concerns"; and (2) when this is
understood as the "purpose of the discretionary function exception in
the FTCA," it assertedly "becomes apparent that the absence of such
an exception in the SIAA is problematic, to say the least." Ante at 19.
Both conclusions are unsupportable.
The only thing the Varig Airlines statement "makes clear" is that
the Supreme Court believed that, when Congress enacted an express
discretionary function exception to the FTCA, it sought to prevent
"judicial ‘second-guessing’" of certain "legislative and administrative
decisions." Varig Airlines, 467 U.S. at 814. The statement does not
"make clear" that either Congress, or the Court, regarded the discre-
tionary function exception in the FTCA as an "embodiment of
separation-of-powers concerns." Ante at 19. Indeed, little indicates
that either Congress or the Court, in fact, believed this; neither body
so much as mentions, even in passing, "separation-of-powers con-
cerns."
Moreover, even if the Varig Airlines Court had found that Con-
gress sought to avoid "separation-of-powers concerns" when it
enacted the FTCA exception, this does not constitute a suggestion, let
alone a holding, that a statute without such an exception is unconstitu-
tional or "problematic." Rather, the legislative history recounted by
the Court in Varig Airlines — that Congress expressly incorporated
a discretionary function into the FTCA, in the face of an executive
opinion that such legislation was not needed because courts would
imply such an exception — seems to suggest just the opposite. This
history indicates Congress ultimately concluded that nothing —
including any separation-of-powers concerns — would require courts
to imply a discretionary function exception, and so it had to enact spe-
cific legislation to that effect.
B.
General statements as to the important policies advanced by "the
checks and balances . . . built into the tripartite Federal Government,"
Buckley v. Valeo, 424 U.S. 1, 122 (1976), provide the only other basis
50 MCMELLON v. UNITED STATES

-- 49 of 85 --

offered by the majority in support of its remarkable decision to "read
into" the SIAA a discretionary function exception. See ante at 17-20,
23-24. If courts determined policy, I might agree with the majority,
but such decisions belong to Congress. And, although it tries might-
ily, the majority fails to demonstrate that "separation- of-powers con-
cerns" justify its own policy-driven decision.
Rather, the majority simply quotes general separation-of-powers
principles and then holds that, without a discretionary function excep-
tion, the SIAA would violate these principles by "substantially
impair[ing]" the "executive branch’s ability to ‘faithfully execute[ ]’
the law." Ante at 20. Even if we could so construe an unambiguous
statute, which we cannot, the majority’s argument fails. For, as the
Supreme Court has long recognized, Congress can "control the execu-
tion of its [statutes] . . . indirectly — by passing new legislation."
Bowsher v. Synar, 478 U.S. 714, 733-34 (1986); accord INS v.
Chadha, 462 US. 919, 953 n.16 (1983). Indeed, the majority itself
implicitly recognizes this. Ante at 22-23 n.5 (noting Congress can
control execution of laws by including detailed statutory require-
ments). Given this power, no separation-of-powers principle prevents
Congress from choosing to affect the execution of its various mari-
time statutes, indirectly, by imposing tort liability on the federal govern-
ment.2
2The attempt to analogize the discretionary function exception to
§ 1983 qualified immunity, ante at 32 (Wilkinson, J., concurring), misses
the mark. Qualified immunity protects officials from the "fear of per-
sonal monetary liability." Anderson v. Creighton, 483 U.S. 635, 638
(1987). The SIAA, regardless of whether a court "reads into" it a discre-
tionary function exception, subjects no official to "personal monetary lia-
bility." Id. Moreover, the suggestion that, absent qualified immunity,
"neither federal, state nor local government could function," ante at 32
(Wilkinson, J., concurring), is simply wrong. Although government offi-
cials accused of violating the federal Constitution and federal statutes are
entitled to assert a qualified immunity defense, those accused of violating
identical state constitutional and statutory provisions often cannot avail
themselves of this defense. See, e.g., Robles v. Prince George’s County,
302 F.3d 262, 273 (4th Cir. 2002). Yet, even without the benefit of the
qualified immunity defense, these officials certainly continue to "func-
tion."
51 MCMELLON v. UNITED STATES

-- 50 of 85 --

In contrast, clear separation-of-powers principles do prohibit courts
from "read[ing] into" the SIAA a discretionary function provision.
Because the federal lawmaking power is "vested in the legislative, not
the judicial branch of government," Northwest Airlines, Inc. v.
Transp. Workers Union of Am., 451 U.S. 77, 95 (1981), courts have
an "obligation to avoid judicial legislation." United States v. Nat’l
Treasury Employees Union, 513 U.S. 454, 479 (1995). When, as here,
"nothing in the legislative history remotely suggests a congressional
intent contrary to Congress’ chosen words . . . any further steps take
the courts out of the realm of interpretation and place them in the
domain of legislation." United States v. Locke, 471 U.S. 84, 96
(1985). If Congress "enacted its intention into law in a manner that
abides with the Constitution, that is the end of the matter; [f]ederal
courts are bound to apply laws enacted by Congress with respect to
matters . . . over which it has legislative power." Stewart Org., Inc.
v. Ricoh Corp., 487 U.S. 22, 27 (1988) (internal quotation marks and
citation omitted). To go beyond applying the statute passed by Con-
gress would effectively be to "judicially rewrit[e]" it and thereby
impermissibly "usurp the policymaking and legislative functions of
duly elected representatives." Heckler v. Mathews, 465 U.S. 728, 741-
42 (1984).
Thus, well-established separation-of-powers principles, rather than
supporting the holding reached by the majority, mandate that we not
"read into" the SIAA’s waiver of sovereign immunity a discretionary
function exception. For these principles — so important in safeguard-
ing the "encroachment or aggrandizement of one branch at the
expense of another," Buckley, 424 U.S. at 122 — require courts to
apply a statute as written by the legislature. Only by doing so can the
judicial branch avoid "arrogat[ing] power to itself" or "impair[ing]"
the legislative branch "in the performance of its constitutional duties."
Ante at 18 (quoting Loving v. United States, 517 U.S. 748, 757 (1966)).3
3My friends in the majority repeatedly note that our sister circuits have
reached the same conclusion that they do. See ante at 13-14, 28-29 n.7;
see also id. at 36 n.2 (Wilkinson, J., concurring). Given the majority’s
acknowledgment that a number of these opinions rest on "cursory analy-
sis," ante at 23, I am surprised at this reliance. Moreover, I note that
agreement among courts of appeals on an issue — even in thoughtful,
well-reasoned opinions — does not invariably garnish Supreme Court
52 MCMELLON v. UNITED STATES

-- 51 of 85 --

III.
For all of these reasons, I would follow our decision in Lane v.
United States, 529 F.2d 175 (4th Cir. 1975), and hold that the SIAA
contains no discretionary function exception to its sovereign immu-
nity waiver. With great respect, I dissent from the majority’s contrary
conclusion.
Judge Michael joins in this opinion.
WIDENER, Circuit Judge, dissenting:
I respectfully dissent. I would not overrule Lane v. United States,
525 F.2d 175(4th Cir. 1975).
I am in agreement, in general terms, with the reasons expressed in
the Introduction to and in Part I of Judge Luttig’s dissenting opinion,
and, as well, I agree with Part II of Judge Motz’s dissenting opinion.
I would add a word. The result obtained by the majority was pre-
dicted more than 200 years ago in the Eleventh Essay of Brutus, the
conclusion of which I quote here:
When the courts will have a precedent before them of a
court which extended its jurisdiction in opposition to an act
of the legislature, is it not to be expected that they will
extend theirs, especially when there is nothing in the consti-
tution expressly against it? and they are authorised to con-
strue its meaning, and are not under any controul?
This power in the judicial, will enable them to mould the
government, into almost any shape they please.-The manner
in which this may be effected we will hereafter examine.
approval. Rather, the Court often rejects a view previously adopted by
a number of the circuit courts. See, e.g., Henderson, 476 U.S. at 330.
Indeed, not infrequently the Court disagrees with the nearly unanimous
view of the circuits. See, e.g., Bailey v. United States, 516 U.S. 137
(1995) (rejecting a holding previously reached by most of the federal
courts of appeals).
53 MCMELLON v. UNITED STATES

-- 52 of 85 --

Brutus XI, 31 January 1788.
LUTTIG, Circuit Judge, dissenting:
The separation-of-powers analysis on the strength of which the
majority judicially engrafts upon the Suits in Admiralty Act (SIAA),
46 U.S.C. app. §§ 741-52 (2000), a discretionary function exception
is one of the most far-reaching and obviously illegitimate (as a matter
of established constitutional doctrine) of any separation-of-powers
analysis that I have encountered during my time on the federal bench.
It is plain that, in judicially forbidding the "clear and unequivocal"
waiver of sovereign immunity that both the Congress and the Execu-
tive agreed upon in the SIAA, the court fundamentally misunder-
stands the principle of separation of powers, mistakenly equating
liability on behalf of the United States with infringement on the Exec-
utive’s power to execute the laws. Indeed, the level of misunderstand-
ing in this regard is breathtaking.
Not only are the separation-of-powers concerns that the court
believes require its conclusion not "compelling"; separation of powers
properly understood, those concerns are altogether nonexistent. That
the Congress of the United States (together with the President him-
self, incidentally) chooses to render the United States liable for a
boating accident caused by the negligence of government officials, on
the same terms as would a private individual be liable for such acci-
dent, does not even arguably encroach upon the Executive’s constitu-
tional power to faithfully execute the laws. And, of course, no more
so does it require exercise of that Executive power by the Judiciary.
Because the decision of Congress (and the President) to waive
immunity broadly does not itself raise any separation-of-powers con-
cern, much less one that would necessitate the extraordinary interpre-
tative action of judicial implication of a categorical discretionary
function exception, which even the majority concedes Congress never
intended, I dissent.
Judge Wilkinson, in concurrence, protests, but too much, that the
court has not gone on a "statutory frolic of its own." But this is pre-
cisely what he proposes. And his attempt to justify the court’s action
exclusively on public policy grounds, without even a pass at a tradi-
54 MCMELLON v. UNITED STATES

-- 53 of 85 --

tional or statutory legal analysis, only further highlights the legal error
committed by the court today.
I.
A.
By every traditional measure of statutory interpretation, the waiver
of the federal government’s immunity from suit in the SIAA must be
read not to include an exception for discretionary functions. See 46
U.S.C. app. § 742. To its credit, the majority does not even contend
otherwise.
As to the text of the SIAA, the majority explains,
[T]he SIAA includes no list of exceptions to its waiver of
sovereign immunity, but instead provides only that the gov-
ernment is entitled to the limitations of liability that are
available in admiralty to private defendants. Thus, the plain
language of the SIAA seems to reflect a Congressional
intent that discretionary acts should not be excluded from
the waiver of sovereign immunity.
Ante at 15.
As to the legislative history of the SIAA, the majority rejects as
"rather remarkable" and "difficult . . . to accept" the government’s
argument that a remark made by an Assistant Attorney General in
1942 during a congressional hearing on the Federal Tort Claims Act,1
should guide the court’s interpretation of the SIAA, which was
enacted twenty-two years earlier in 1920 and amended eighteen years
later in 1960. The majority explains that, when Congress itself finally
enacted the FTCA four years after this statement, it did not accept the
1The Assistant Attorney General allowed that, "claims of the kind
embraced by the discretionary function would have been exempted from
the waiver of sovereign immunity by judicial construction," even if such
an exemption was not expressly included in the FTCA. United States v.
S. A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467
U.S. 797, 810 (1985).
55 MCMELLON v. UNITED STATES

-- 54 of 85 --

Assistant Attorney General’s assurance; instead it included an express
exception for discretionary functions of the government in the FTCA.
See 28 U.S.C. § 2680(a). The majority then reasons quite rightly that,
if the legislative history of the FTCA is to be given any effect in inter-
preting the SIAA, it argues against construing the SIAA to include a
discretionary function exception:
[I]f the [discretionary functions] exception remained as
important to Congress in 1960 when it amended the SIAA
as it was when the FTCA was enacted, then it stands to rea-
son that Congress would have written the exception into the
SIAA then, particularly since the 1960 SIAA amendments
transferred jurisdiction over a number of claims from the
FTCA to the SIAA.
Ante at 16.2
2The evidence with regard to the history of congressional action is
even stronger than the majority explains. The SIAA was enacted in 1920,
predating enactment of the FTCA (and the discretionary functions
exception that the majority now holds must be "read into" the SIAA) by
26 years. Prior to its amendment in 1960 to include maritime activities
previously covered by the FTCA, the SIAA, along with the Public Ves-
sels Act (PVA), waived the government’s immunity from suit for injuries
caused by public or merchant vessels. Just as now, the SIAA’s waiver of
sovereign immunity did not include any exceptions. Accordingly, as the
majority recounts, both Acts were interpreted by the Supreme Court and
the lower courts to apply to allegedly tortious actions of the government
that would surely have fallen under the discretionary functions exception
if a similar claim were raised under the FTCA. See ante at 26-27 (listing
lower court cases); Canadian Aviator, Ltd. v. United States, 324 U.S.
215 (1945) (holding the guidance of a Navy control boat during World
War II to be within the coverage of the PVA); McAllister v. United
States, 348 U.S. 19 (1954) (holding the government’s decision to allow
Chinese soldiers aboard a ship to be negligent in light of well-known risk
of polio).
The 1960 amendment expanded the range of governmental activities
for which the SIAA subjected the government to liability beyond those
taken by public and merchant vessels, to include all maritime actions, but
it did nothing to alter the broad scope of the SIAA’s waiver of immunity.
Thus, contrary to the government’s argument, the only permissible infer-
56 MCMELLON v. UNITED STATES

-- 55 of 85 --

And, as to "familiar canons of statutory construction," the majority,
likewise, correctly rejects the government’s argument that the SIAA’s
waiver of sovereign immunity in the SIAA is ambiguous with respect
to discretionary functions, reasoning that,
the waiver of sovereign immunity contained within the
SIAA [ ] is clear and unequivocal, providing that an in per-
sonam admiralty action may be brought against the govern-
ment if such an action could be maintained against a private
person. Contrary to the government’s suggestion, we simply
cannot create an ambiguity in the SIAA by looking to the
language and structure of the FTCA.
Ante at 16.
With each of these conclusions, as to the Act’s statutory text, legis-
lative history, and the import of traditional tools of statutory construc-
tion, I could not agree more. And, of course, I also agree with the
majority’s understated conclusion that, in light of these consider-
ations, one "cannot conclude that Congress clearly intended for the
SIAA’s waiver of sovereign immunity to be subject to an exception
for discretionary functions, nor can [one] reach that conclusion by
resort to traditional tools of statutory construction." Ante at 17. In
fact, as the majority ably demonstrates in its wholesale rejection of
the government’s statutory arguments, both the text of the SIAA and
"traditional tools of statutory construction" prove precisely the oppo-
site, that Congress intended not to except discretionary functions from
its waiver of sovereign immunity in the SIAA.
B.
Despite its own acknowledgment of the conclusive nature of the
statutory text and legislative history, however, the majority holds that
it is nevertheless "required" by separation-of-powers principles to
ence from this history is that the government must be held liable for
those activities that the 1960 amendment expanded the SIAA so as to
include, for the same range of conduct for which it had been held liable
prior to the amendment.
57 MCMELLON v. UNITED STATES

-- 56 of 85 --

"read into the SIAA’s waiver of sovereign immunity a discretionary
function exception," ante at 22. Undoubtedly in an effort to play
down the import of its extraordinary holding, the majority maintains
that it reaches this result as a matter of statutory interpretation.3 But,
of course, in actuality it reaches its result as a matter of constitutional
principle of the highest order. And its reconstruction of the statute on
the basis of this constitutional principle is indefensible.
Though the majority does not say so explicitly, its contention that
it may "read into" the SIAA an exception where the Act itself is "si-
lent" is apparently founded on the canon of constitutional avoidance,
see ante at 22, which provides that statutory ambiguity should be
resolved in a manner that avoids difficult constitutional questions out
of "respect for Congress, which we assume to legislate in the light of
constitutional limitations." Harris v. United States, 536 U.S. 545, 556
(2002) (quoting Rust v. Sullivan, 500 U.S. 173, 191 (1991)). The
canon of avoidance is not applicable here, however, because, as the
majority itself holds, the SIAA’s waiver of sovereign immunity is
"clear and unequivocal." See United States v. Oakland Cannabis Buy-
ers’ Coop., 532 U.S. 483, 494 (2001) (holding that "the canon of con-
stitutional avoidance has no application in the absence of statutory
ambiguity"). I could not state it any clearer than does the majority:
"The waiver of sovereign immunity contained within the SIAA [ ] is
clear and unequivocal, providing that an in personam admiralty
action may be brought against the government if such an action could
be maintained against a private person. Contrary to the government’s
suggestion, [the court] simply cannot create an ambiguity in the SIAA
by looking to the language and structure of the FTCA." Ante at 16
(emphasis added).
3Thus, for example, the majority would have the reader believe that the
court "do[es] not consider" whether, within the bounds of the Constitu-
tion, Congress would have the power to subject the government to liabil-
ity for its discretionary acts if it chose to do so, ante at 22-23 & n.5,
because it ultimately concludes that the SIAA is "silent" as to whether
it includes an exception for discretionary acts, eliminating any need to
decide the larger constitutional question. As explained infra, however,
the court’s own analysis betrays that it does not believe that the SIAA
is "silent" on this point.
58 MCMELLON v. UNITED STATES

-- 57 of 85 --

The majority attempts to avoid the problem that the SIAA’s
unequivocal waiver poses to its invocation of the avoidance canon by
characterizing the SIAA at a different point in its opinion as "silent"
on the particular question of whether immunity for the performance
of discretionary functions is waived. This argument, for which the
majority does not offer even a word of support, is no more availing
than the government’s contention, rejected by the majority, that the
SIAA is ambiguous. The SIAA provides that, "in cases where . . . if
a private person or property were involved, a proceeding in admiralty
could be maintained," suit may be brought against the United States
government. 42 U.S.C. app. § 742. Because private persons clearly
may be sued for negligent, discretionary actions, the unambiguous
meaning of this statute is that the government may be sued for these
actions as well. In no sense at all does the absence of an exception
from the Act’s general waiver of sovereign immunity render the Act
"silent" on the question of whether that waiver should be interpreted
to include the exception. See Pennsylvania Dep’t of Corr. v. Yeskey,
524 U.S. 206, 211-12 (1998); Engine Mfrs. Ass’n v. E.P.A., 88 F.3d
1075, 1088 (D.C. Cir. 1996) (providing that, if the text of a statute
"clearly requires a particular outcome, then the mere fact that it does
so implicitly rather than expressly does not mean that it is ‘silent’").
Rather, the absence of the exception, coupled with the imposition of
liability on the United States on the same terms as would a private
individual be liable, is about as clear an expression of congressional
intent to waive the government’s sovereign immunity broadly as can
be imagined.
The majority obviously has failed to appreciate that "[t]here is a
basic difference between filling a gap left by Congress’ silence and
rewriting rules that Congress has affirmatively and specifically
enacted." United States v. Locke, 471 U.S. 84, 95 (1985) (quoting
Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978)). The
canon of avoidance provides that a court may do the former to avoid
raising constitutional issues, but under no circumstance does it pro-
vide justification for a court to undertake the latter. Whitman v. Amer-
ican Trucking Ass’n, 531 U.S. 457, 471 (2001) ("No matter how
severe the constitutional doubt, courts may choose only between rea-
sonably available interpretations of a text."); Yeskey, 524 U.S. at 212.
"Any other conclusion, while purporting to be an exercise in judicial
restraint, would trench upon the legislative powers vested in Congress
59 MCMELLON v. UNITED STATES

-- 58 of 85 --

by Art. I, § 1, of the Constitution." United States v. Albertini, 472
U.S. 675, 680 (1985). In this case, the SIAA’s waiver of sovereign
immunity is complete and leaves no gap to be filled; the court’s con-
trary "construction" of the Act to include an exception missing from
the text of the Act itself represents nothing more than judicial legisla-
tion within the meaning of Albertini. As the Supreme Court explained
in dismissing a similar argument that the FTCA must be read to
exclude "core government functions" from liability despite the
absence of such an exemption from the statutory text: "There is no
justification for this Court to read exemptions into the Act beyond
those provided by Congress. If the Act is to be altered that is a func-
tion for the same body that adopted it." Rayonier Inc. v. United
States, 352 U.S. 315, 320 (1957).
In sum, the SIAA is not "silent" on the question of whether its
waiver of sovereign immunity includes waiver of immunity from
claims for injuries caused by the government’s discretionary acts any
more than a will directing that the entirety of a deceased’s estate be
given to his spouse is "silent" on the question of whether that direc-
tion includes his house. Indeed, because the Act is unambiguous on
this issue, the canon of constitutional avoidance — the means through
which the majority engrafts a discretionary function exception here —
is flatly inapplicable. I would affirm our court’s decision in Lane v.
United States, 529 F.2d 175 (4th Cir. 1975), and hold that the SIAA
means what it says: a "nonjury proceeding in personam may be
brought against the United States" wherever a suit could be main-
tained "if a private person or property were involved." 46 U.S.C. app.
§ 742.
II.
In high irony, the majority rejects this holding, which actually is
compelled by the principle of separation of powers, in an effort to
avoid what the majority perceives to be, but which emphatically are
not, two separate affronts to that principle. First, and primarily, the
majority believes that the imposition of liability on the government
for its discretionary acts would represent an encroachment by Con-
gress on "[t]he executive branch’s ability to ‘faithfully execute[ ]’ the
law, U.S. Const., art. II § 3." Ante at 20; see also id. at 22-23 n.5. Sec-
ond, the majority believe that, were the SIAA interpreted to subject
60 MCMELLON v. UNITED STATES

-- 59 of 85 --

the government to liability for its discretionary functions, "the judi-
ciary would be called upon to decide issues it is not equipped to
resolve," and would be forced to "second-guess" the wisdom of policy
decisions made by the government. Ante at 20. So severe does the
majority believe these two potential problems to be that a fair reading
of its opinion is that it believes that it would likely be unconstitutional
for Congress to subject the government to liability for its performance
of discretionary acts under any circumstance. See id. at 22-23 n.5.
Neither of these two perceived separation-of-powers problems
even arguably requires that, as a categorical matter, the government
be immune from liability whenever its tortious acts may be character-
ized as discretionary. The majority’s contortion of the statutory text
of the SIAA, in other words, is ultimately as unnecessary constitution-
ally as it is impermissible statutorily.
A.
1.
As to the first of the majority’s separation-of-powers concerns, the
absence of a discretionary function exception from the SIAA, what-
ever else it may be, is not even arguably an impermissible encroach-
ment on the Executive’s duty to faithfully execute the laws. The only
effect the SIAA’s blanket waiver of immunity has is to subject the
government to liability for a larger class of conduct than would be the
case if certain government functions were excepted from the Act’s
coverage. And not even the majority identifies a single law that the
Executive would be prohibited from or impeded from enforcing were
the court to interpret this broad waiver of sovereign immunity as it
was written to include discretionary functions, or even to explain the
way in which the Executive’s enforcement powers could be affected
by the liability that such a waiver creates.4
(Text continued on page 63)
4Judge Wilkinson, in his separate opinion, argues that "the discretion-
ary function exception is . . . implied only in the same sense that the doc-
trine of qualified immunity is implied in the interpretation of 42 U.S.C.
§ 1983 — on the premise that without the ability to exercise some ele-
ment of judgment in the execution of law, neither federal, state, nor local
government could function." Ante at 32 (Wilkinson, J., concurring).
61 MCMELLON v. UNITED STATES

-- 60 of 85 --

Of course, this comparison overlooks the critical distinction between
suits brought pursuant to the SIAA and actions brought under 42 U.S.C.
§ 1983, and, thereby, greatly exaggerates any disruption in Executive
action which liability under the SIAA would create. Actions brought
under 42 U.S.C. § 1983 are filed against the officer in his personal capac-
ity and subject the officer himself to liability. Absent a protection for
actions taken where "the law did not put the officer on notice that his
conduct would be clearly unlawful," Saucier v. Katz, 533 U.S. 194, 202
(2001), such possibility of personal ruin would doubtless cause Execu-
tive officers to act with an overabundance of caution. See Pierson v. Ray,
386 U.S. 547, 555 (1967). Suits under the SIAA, in contrast, do not raise
the same concerns because they are brought against the United States and
produce damages awards assessable against the federal fisc, not the rele-
vant Executive officer. See infra at 65-66 (citing 46 U.S.C. app. § 748).
It may still be that some officers of the government, not wanting to
subject their government to a claim in negligence, may act with added
care, but any such influence would be minuscule when compared to the
prospect of personal liability, as the Supreme Court has repeatedly recog-
nized. Compare Owen v. City of Independence, 445 U.S. 622, 656 (1980)
("The inhibiting effect [of liability] is significantly reduced, if not elimi-
nated, however, when the threat of personal liability is removed."); Lake
Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391,
405 n. 29 ("[T]he justifications for immunizing officials from personal
liability have little force when suit is brought against the governmental
entity itself."); Berkley v. Common Council City of Charleston, 63 F.3d
295, 301 (4th Cir. 1995) (en banc) with id. at 305 (Wilkinson, J., dissent-
ing) (arguing that, "as a practical matter, [concerns about the effect of
subjecting individual legislators to liability] are no less powerful when
the legislative entity itself is sued").
Judge Wilkinson also contends, in considerable overstatement, that,
"[s]horn of a discretionary function exception, the executive branch
would be profoundly impaired in carrying out the very functions that
Congress has assigned to it." Ante at 33-34 (Wilkinson, J., concurring).
Not only can this contention not be squared with the fact that this Circuit
has, with two arguable exceptions, subjected the government to liability
for its discretionary functions since the SIAA’s enactment in 1920 with-
out any serious disruption in the functioning of the Executive. See Lane,
529 F.2d at 179; United States v. The S.S. Washington, 241 F.2d 819,
821 (4th Cir. 1957); Pacific-Atlantic S.S. Co. v. United States, 175 F.2d
62 MCMELLON v. UNITED STATES

-- 61 of 85 --

Although it does not realize it, the problem facing the majority is
one relating to first principles: It has misunderstood — and funda-
mentally so — the very separation-of-powers principle that it believes
compels its holding. The majority has equated governmental immu-
nity from liability with the execution of the laws, holding that, if by
statute the government is rendered liable, then ipso facto the Execu-
tive’s power to execute the laws has been "substantially impaired."
Ante at 20 (relying on examples of potential government liability to
"illustrate" that "if the SIAA does not include a discretionary function
exception, the executive branch’s ability to ‘faithfully execute[ ]’ the
law would be substantially impaired") (internal citation omitted); ante
at 30 (citing Congress’ "desire to protect certain governmental activi-
ties from exposure to suit by private individuals" as the "separation
of powers concern" that "drove Congress to create the discretionary
function exception to the FTCA"); see also ante at 32 (Wilkinson, J.,
concurring) (stating that "the executive has an explicit, not an
implicit, duty to see that the laws are faithfully executed" and that "to
subject [the Executive’s] . . . discretionary act[s] to the prospect of
tort liability . . . undercut[s] [that] explicit constitutional command").
To equate the Executive’s duty to "faithfully execute the Laws" under
Article II of the Constitution, with governmental immunity, is to fun-
damentally misapprehend both concepts. I would not have thought it
needed saying, but the laws that the Executive is charged to enforce
are those enacted by the Congress. Within contours limited only by
the Constitution, Congress possesses the power to set the legal param-
eters within which the Executive and its officials must act and to pro-
vide a remedy to citizens injured by the government’s failure to
observe those parameters. See Bowsher v. Synar, 478 U.S. 714, 733
(1986) (explaining that "once Congress makes its choice in enacting
legislation . . . [it] can thereafter control the execution of its enact-
ment . . . indirectly — by passing new legislation"); Buckley v. Valeo,
424 U.S. 1, 132 (1976) (providing that "Congress has plenary author-
ity in all areas in which it has substantive legislative jurisdiction so
632, 642 (4th Cir. 1949). But it is also irreconcilable with the numerous
other avenues that Congress has provided for challenging the propriety
of discretionary Executive action, even prior to the Executive’s ability to
take that action. See, e.g., infra at 64-65 (discussing the opportunity for
judicial review provided in NEPA and the APA).
63 MCMELLON v. UNITED STATES

-- 62 of 85 --

long as the exercise of that authority does not offend some other con-
stitutional restriction") (internal citation omitted). And when it does
so, there is no argument of any kind that it has encroached upon the
Executive’s Article II, sec. 3 power. As the Tenth Circuit recently
explained,
when Congress is exercising its own powers with respect to
matters of public right, the executive role of ‘tak[ing] Care
that the Laws be faithfully executed,’ is entirely derivative
of the laws passed by Congress, and Congress may be as
specific in its instructions to the Executive as it wishes.
Biodiversity Assoc. v. Cables, 357 F.3d 1152, 1162 (10th Cir. 2004)
(internal citation omitted); see id. ("To give specific orders by duly
enacted legislation in an area where Congress has previously dele-
gated managerial authority is not an unconstitutional encroachment on
the prerogatives of the Executive; it is merely to reclaim the formerly
delegated authority.") (emphasis in original); Stop H-3 Assoc. v. Dole,
870 F.2d 1419, 1437 (9th Cir. 1989).
Congress’ judgment in the SIAA to limit the Executive’s discretion
through tort liability on the same terms as would exist for a private
individual is no less constitutional than the requirement under the
National Environmental Policy Act that the Executive first prepare an
environmental impact statement before undertaking an act that may
cause environmental harm, see 42 U.S.C. § 4332, or, even more gen-
erally, the requirement under the Administrative Procedures Act that
Executive agencies implement the substantive laws they are charged
with enforcing reasonably and non-arbitrarily, see 5 U.S.C. § 706
(providing that a reviewing court shall "hold unlawful and set aside
agency action, findings and conclusions found to be arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance with
law"). Each statutory obligation constrains the Executive’s discretion,
and, at some level, each subjects the Executive to judicial review of
its discretionary decisions to ensure that it abides those constraints.
The procedural and substantive burdens these Acts impose prevent
the Executive from acting when it otherwise would have in some
cases and, in others, cause the Executive to implement the laws in
ways that it otherwise would not. Yet, the limitation on the range of
permissible actions that NEPA and the APA impose do not violate the
64 MCMELLON v. UNITED STATES

-- 63 of 85 --

principle of separation of powers because those acts of Congress, like
the SIAA, are the laws that the Executive is charged with executing.
This is not to say that it is impossible for Congress to enact a law
that impermissibly impinges on the Executive’s constitutional prerog-
atives. Unquestionably, Congress could do so. For instance, if Con-
gress were to subject the Executive’s exercise of its core prosecutorial
discretion to review by the courts, or, even more dramatically, to con-
dition a significant level of funding on the exercise of the Executive’s
pardon or appointment powers in a particular manner, legitimate
questions as to the effect of those limitations on the independence of
the Executive could be raised. See, e.g., Buckley, 424 U.S. at 134
(holding that Congress’ constitutional power to regulate elections did
not allow it to "vest in itself, or in its officers, the authority to appoint
officers of the United States when the Appointments Clause by clear
implication prohibits it from doing so"); I.N.S. v. Chadha, 462 U.S.
919, 935 n.8 & 953 n.17 (reserving the question of whether Congress
"retain[ed] the power . . . to enact a law, in accordance with the
requirements of Article I of the Constitution, mandating a particular
alien’s deportation, unless, of course, other constitutional principles
place substantive limitations on such action," but noting then-
Attorney General Jackson’s attack on such a law as "an historical
departure from an unbroken American practice and tradition"). But it
is to say that the SIAA’s mandate that the government compensate
injured parties for the negligent exercise of the Executive’s discretion
in implementing the laws does not even arguably do so.
2.
Not only does the SIAA not impinge directly on the Executive’s
authority to execute the laws, it does not even do so indirectly through
the fisc, underscoring even further the constitutionality of the Act as
written. The SIAA exposes only the government to liability in tort for
its discretionary acts; it leaves both the individual Executive agencies
and the Executive officers that serve them free to employ their discre-
tion without concern that the injuries caused by their occasional errors
will leave the agency without the means necessary to execute the laws
and without concern that personal capacity liability will exist. To this
purpose, the SIAA provides that suits be brought against the United
States and that judgments be paid, not from the individual agency
65 MCMELLON v. UNITED STATES

-- 64 of 85 --

budgets, but instead from a special fund set up by Congress or, if that
fund is exhausted, from the federal treasury. See 46 U.S.C. app.
§ 748. Thus, just as there can be no argument that the SIAA impairs
the Executive’s execution of the laws simply by altering the scope of
the Executive’s permissible conduct, see supra at 61-65, there can be
no argument that the SIAA does so indirectly by restricting the capac-
ity of the Executive agencies or the willingness of Executive officers
to act in execution of the laws. Taken on its own terms, the SIAA
plainly does neither.
Executive agencies charged with execution of the laws may act
more cautiously or, in certain circumstances, decide not to act where
they otherwise would have, concerned with the impact of potential
liability on the federal treasury. But, if this is the case, it is so because
Congress has made the policy judgment that the government must
compensate those that it injures whenever a private individual would
have to do so in a like circumstance and has accepted the consequence
of this liability. This is a judgment Congress is entitled to make and,
as importantly, one that we are not. No less than with the FTCA, the
government’s concern that a contrary interpretation would impose "a
heavy burden . . . on the treasury," is not itself sufficient to raise con-
stitutional concerns. Rayonier, 352 U.S. at 320. As the Supreme Court
explained in Rayonier:
Congress was aware that when losses caused by such negli-
gence are charged against the public treasury they are in
effect spread among all those who contribute financially to
the support of the Government and the resulting burden on
each taxpayer is relatively slight. But when the entire burden
falls on the injured party it may leave him destitute or griev-
ously harmed. Congress could, and apparently did, decide
that this would be unfair when the public as a whole benefits
from the services performed by Government employees.
Id. (emphasis added). In the face of such clear instruction, all the
more remarkable is the majority’s underlying reasoning that Congress
is not empowered under the Constitution to make the same judgment
about discretionary functions that the Supreme Court held in Rayonier
to be firmly within Congress’ power with respect to "uniquely gov-
ernmental" ones.
66 MCMELLON v. UNITED STATES

-- 65 of 85 --

3.
The majority contends that "the Supreme Court has made clear that
the discretionary function exception contained in the FTCA is
grounded in separation-of-powers concerns," citing in support of this
contention the Supreme Court’s opinion in United States v. S.A.
Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S.
797, 810 (1984). Ante at 18. The Supreme Court’s decision in Varig
Airlines held no such thing, however. In that case, the Court set forth
the policy considerations that motivated Congress’ creation of a dis-
cretionary function exception in the FTCA; it did not say that these
motivations originated in concerns about potential separation-of-
powers problems. In fact, as the majority is compelled to concede, the
phrase "separation of powers" does not appear anywhere in the
Court’s opinion. Ante at 18.
The majority dismisses the absence of any mention of separation
of powers as nothing more than mere oversight. It writes, "Although
Varig does not use the phrase ‘separation of powers,’ the Court’s
explanation of the purpose behind the exception makes it clear that
the exception is a statutory embodiment of separation-of-powers con-
cerns." Ante at 18-19 (emphasis added). The Fifth Circuit may have
believed this to be the case, id. (citing Payton v. United States, 636
F.2d 132, 143 (5th Cir. 1981) (claiming that, "[t]he crux of the con-
cept embodied in the discretionary function exception is that of the
separation of powers")), but, as even the passage from Varig Airlines
relied upon by the majority demonstrates, the Supreme Court has
given no indication that it agrees. The majority’s attempt to inject
constitutional principle into Congress’ policy judgments via Varig
Airlines is untenable, plain and simple.
The relevant passage from Varig Airlines provides as follows,
Congress wished to prevent judicial ‘second-guessing’ of
legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an
action in tort. By fashioning an exception for discretionary
governmental functions, including regulatory activities,
Congress took steps to protect the Government from liabil-
67 MCMELLON v. UNITED STATES

-- 66 of 85 --

ity that would seriously handicap efficient government oper-
ations.
Ante at 19 (quoting Varig Airlines, 467 U.S. at 814) (emphasis
added). This passage not only does not mention separation of powers,
it talks plainly and only of the policy considerations that influenced
Congress’ decision to create a discretionary function exception in the
FTCA. Neither policy consideration, in and of itself, demonstrates —
even implicitly — that separation-of-powers concerns motivated Con-
gress’ adoption of a discretionary function exception; necessarily, nei-
ther "makes clear" that this was the case. Ante at 18-19; id. at 30
(citing Varig Airlines for the proposition that separation-of-powers
concerns "drove Congress to create the discretionary function excep-
tion to the FTCA").
To begin, that Congress acted out of an aversion to judicial second-
guessing does not necessarily imply anything at all as to separation
of powers. As the Supreme Court made clear in Baker v. Carr, 369
U.S. 186, 211 (1962), judicial review of Executive policy decisions
is not, without more, an impermissible encroachment on the Execu-
tive. See id. at 211, 217 (explaining that separation-of-powers princi-
ples require courts to avoid decision "of ‘political questions,’ not . . .
political ‘cases’"). Of course, the mere fact that judicial review of
such Executive decisions is permitted by the Constitution does not
mean that it is desirable in all cases in which it is available. Congress
could therefore decide that the courts should not review (or "second-
guess") a particular class of Executive decisions as a matter of policy,
without implying that the authorization of such review would consti-
tute an unconstitutional encroachment on the Executive. In fact, the
context in which the Varig Airlines Court describes Congress’ con-
cern about judicial second-guessing suggests, if anything, that Con-
gress made just this judgment — and only this judgment — with
regard to the FTCA. The next sentence in the Court’s opinion indi-
cates that Congress sought to avoid judicial second-guessing, not
because Congress was concerned about the judiciary’s assumption of
the Executive function or about the Judiciary’s inability to adjudicate
the propriety of the Executive’s discretionary actions, but rather
because "judicial second-guessing" could subject the government "to
liability that would seriously handicap efficient government opera-
tions." Varig Airlines, 467 U.S. at 814 (emphases added).
68 MCMELLON v. UNITED STATES

-- 67 of 85 --

Even less does the fact that Congress decided to include a discre-
tionary function exception in the FTCA "to protect the Government
from liability that would seriously handicap efficient government
operations," demonstrate, or even imply, that Congress did so in def-
erence to separation-of-powers principles. Separation-of-powers prin-
ciples are solely concerned with the inter-relationships between the
three constitutional branches of government. Neither Congress’ desire
to protect the government from liability nor its interest in promoting
efficient government operations relates in any way to these relation-
ships. It may be, as the Supreme Court suggested in Varig Airlines,
that the government would operate more efficiently if it were immune
from tort liability for the Executive’s negligent discretionary acts, but
that Congress has chosen to sacrifice some degree of efficiency in
order to provide compensation for persons injured by such acts does
not imply anything with regard to the constitutionality of that judg-
ment.
Thus, notwithstanding the majority’s contention to the contrary,
Varig Airlines offers no guidance whatsoever as to whether the dis-
cretionary function exception is required by separation-of-powers
principles.
B.
I turn then to the majority’s concern that, if the SIAA is construed
to waive the government’s immunity for discretionary functions, the
judiciary will be called upon to answer questions "it is not equipped
to resolve." Ante at 20. Though the majority does not recognize that
it does so, this separation-of-powers concern, at its heart, asks
whether the instant case presents issues so far beyond the judicial
competence as to pose an essentially political question, rendering the
case non-justiciable. See Baker, 369 U.S. at 211 ("The nonjusticia-
bility of a political question is primarily a function of the separation
of powers."). Indeed, the majority’s fear that "the judiciary would be
called upon to decide issues it is not equipped to resolve," mirrors the
Supreme Court’s recitation of two of the prominent characteristics of
non-justiciable cases under the political question doctrine: "a lack of
judicially discoverable and manageable standards for resolving [the
69 MCMELLON v. UNITED STATES

-- 68 of 85 --

case];" and "the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion." Id. at 217.5
Looking to the Supreme Court’s political question jurisprudence as
guidance, I agree that the SIAA may well authorize some suits that
call upon the courts to make political judgments that they are neither
prepared to make, nor capable of competently making. See, e.g.,
Coates v. United States, 181 F.2d 816, 817 (8th Cir. 1950) (dismiss-
ing suit against government alleging negligence in decision to change
the course of the Missouri River). I also agree that these problems
may be sufficiently severe in certain cases that a court would be justi-
fied in declining to decide a case otherwise properly before it. See,
e.g., Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (dismissing, on the
basis of the political question doctrine, claim challenging "the com-
plex, subtle and professional decision as to the composition, training,
equipping and control of a military force"); Dep’t of the Navy v.
Egan, 484 U.S. 518 (1988) (refusing to review the Navy’s decision
not to grant security clearance to plaintiff).
5The six independent tests for the existence of a political question set
forth in Baker are:
[1] a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or [2] a lack of judi-
cially discoverable and manageable standards for resolving it; or
[3] the impossibility of deciding without an initial policy deter-
mination of a kind clearly for nonjudicial discretion; or [4] the
impossibility of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate branches
of the government; or [5] an unusual need for unquestioning
adherence to a political decision already made; or [6] the potenti-
ality of embarrassment from multifarious pronouncements by
various departments on one question.
Baker, 369 U.S. at 217. To the extent that the majority’s separation-of-
powers concerns extend beyond those identified in the second or third of
these tests to other of the six conditions listed in Baker, I do not believe
that those additional concerns would alter, in any meaningful way, a
court’s calculus in determining whether any particular case presented a
political question. And, in any event, my ultimate conclusion — that the
political question doctrine is sufficient to address separation-of-powers
issues that may arise from suits brought under the SIAA — remains
unchanged.
70 MCMELLON v. UNITED STATES

-- 69 of 85 --

These separation-of-powers concerns, however, do not warrant the
wholesale creation of a broad exception to the SIAA’s waiver of sov-
ereign immunity for all discretionary functions.6 Indeed, separation-
of-powers principles, as expressed through the political question doc-
trine, eschew this sort of sweeping judicial pronouncement. That a
case pertains to a discretionary function, even a highly sensitive or
political one, is not enough for a case to be deemed nonjusticiable.7
See Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221,
229 (1986) (affirming Baker’s observation that "not every matter
touching on politics is a political question"); Hopson v. Kreps, 622
F.2d 1375, 1378 (9th Cir. 1980) ("The analysis in Baker makes it
clear that the criteria there generally do not apply to claims that the
executive has exceeded specific limitations on delegated authority.").
As is likely to be relevant to the SIAA, the court must also lack "judi-
cially discoverable and manageable standards" for judging the propri-
ety of the Executive action or the standard that exists must require the
court itself to make a "policy judgment of a kind clearly for nonjudi-
cial determination." Baker, 369 U.S. at 217. Accordingly, the inquiry
as to whether a particular case is justiciable "is itself a delicate exer-
cise in constitutional interpretation" and must be conducted on a
6Again in overstatement, Judge Wilkinson contends that, if the SIAA
is interpreted not to include a discretionary function exception, the Exec-
utive would be "disable[d] . . . from invoking separation-of-powers prin-
ciples via its discretionary functions as a defense to unlimited tort
liability." Ante at 34 (Wilkinson, J., concurring). Of course, this is not so.
The discretionary function exception is not coterminous with that which
separation-of-powers principles forbids the court from deciding.
Separation-of-powers principles bar the courts from deciding political
questions, not political cases. Baker, 369 U.S. 210-11. Thus, even absent
a discretionary function exception, the government may vindicate its
concerns about separation of powers by arguing, for instance, that the
issues the court is called upon to resolve in any given case present essen-
tially political questions and, therefore, that the case is non-justiciable.
7In the administrative law context, the courts are regularly called upon
to consider the propriety of the Executive’s policy decisions, and, within
broad limits, see Heckler v. Chaney, 470 U.S. 821, 830 (1985) (provid-
ing that there is a "narrow" exception to reviewability of agency action
under the APA for those instances in which "no judicially manageable
standards are available for judging how and when an agency should exer-
cise its discretion"), the courts have embraced the opportunity.
71 MCMELLON v. UNITED STATES

-- 70 of 85 --

"case-by-case basis." Id. at 211. On this point, the Supreme Court
could not have been more clear:
The doctrine of which we treat is one of ‘political ques-
tions,’ not one of political ‘cases.’ The courts cannot reject
as ‘no law suit’ a bona fide controversy as to whether some
action denominated ‘political’ exceeds constitutional author-
ity. The cases we have reviewed show the necessity for dis-
criminating inquiry into the precise facts and posture of the
particular case, and the impossibility of resolution by any
semantic cataloguing.
Baker, 369 U.S. at 217; see also id. at 211 (providing that "the ‘politi-
cal question’ label" obscures "the need for case-by-case inquiry");
Schroder v. Bush, 263 F.3d 1169, 1173-74 (10th Cir. 2001); Hopson,
622 F.2d at 1378. This passage is not merely hortatory. The question
of a case’s justiciability is a "delicate exercise in constitutional inter-
pretation" precisely because the courts are obliged to decide those
cases where there are objective, legal standards to guide their deci-
sions, no less than they are obliged to demur when they find them-
selves without manageable legal principles. See Baker, 369 U.S. at
217 (providing that, "unless one of these formulations is inextricable
from the case at bar, there should be no dismissal for nonjusticiability
on the ground of a political question’s presence"); cf. Johnson v. Col-
lins Entertainment Co., Inc., 199 F.3d 710, 729 (4th Cir. 1999) (Lut-
tig, J., concurring in the judgment) ("If Congress sees fit to provide
citizens with a particular cause of action, then we as federal courts
should entertain that action — and unbegrudgingly.").
In light of this command, the majority’s exception of all discretion-
ary functions from the SIAA’s waiver of sovereign immunity is espe-
cially unsustainable. Ante at 20-21 (providing that "where the
executive’s discretionary functions are at issue, interference from the
judicial branch is inappropriate"). For it is a wildly overinclusive rem-
edy for an ill that is likely to appear only in a relatively small set of
cases. In the vast majority of claims involving the Executive’s discre-
tionary functions, the courts will not find themselves bereft of "judi-
cially discoverable or manageable standards" or compelled to make
"a policy judgment of a kind clearly for nonjudicial discretion," see
Baker, 369 U.S. at 217, even if the governmental actions or omissions
72 MCMELLON v. UNITED STATES

-- 71 of 85 --

that those courts are reviewing were themselves made for policy or
political reasons.8 See, e.g., Graves v. United States, 872 F.2d 133
(6th Cir. 1989) (suit against government involving its placement of
signs around dam); B & F Trawlers, Inc. v. United States, 841 F.2d
626 (5th Cir. 1988) (suit against government for negligence in "care,
custody and control" of seized vessel); Faust v. South Carolina State
Highway Dep’t, 721 F.2d 934 (4th Cir. 1983) (suit against govern-
ment for Coast Guard and Army Corps of Engineer’s failure to mark
a ferry cable across a navigable waterway); Bearce v. United States,
614 F.2d 556 (7th Cir. 1980) (suit against government for Coast
Guard’s failure to erect a light at the end of a harbor); Meagher v.
United States, 170 F. Supp. 2d 960 (N.D. Cal. 2001) (suit against the
government for decision to donate ship without removing certain
bulkheads); Eazor Express, Inc. v. United States, 611 F. Supp. 197
(E.D.N.Y. 1985) (suit against the government for decision to allow
independent contractor to dredge in the vicinity of support bulk-
heads). In fact, as the majority itself explains, the courts regularly
entertained challenges brought under the SIAA to discretionary gov-
ernment actions prior to the Act’s amendment in 1960, and review of
each of these cases bears out that the courts were more than compe-
tent in applying standard tort law principles to the government’s dis-
cretionary functions.9 Ante at 25-27. In cases brought under the SIAA,
8In confirmation of the courts’ competence in this respect, the courts
have universally held that municipalities may be subjected to liability
under 42 U.S.C. § 1983, both for the discretionary acts of their Executive
officials and even for the unconstitutional enactments and actions of their
local legislature. Owen v. City of Independence, 445 U.S. 622 (1980)
(discretionary actions); Berkley v. Common Council of the City of
Charleston, 63 F.3d 295 (4th Cir. 1995) (en banc) (legislative enact-
ments).
9The majority’s attempt to mitigate the significance of these decisions
falls flat. Ante at 28 (suggesting that "the failure to address the issue [of
separation of powers] could . . . be attributed to . . . the government’s
failure to press the issue"). Whether or not the government raised the
separation-of-powers issue, the fact of the courts’ adjudication of the
challenged government actions in the five cases cited by the majority by
itself establishes that the Supreme Court and the courts of appeals that
decided them viewed the discretionary functions involved therein to be
readily susceptible to judicial review. And nothing more is required to
73 MCMELLON v. UNITED STATES

-- 72 of 85 --

the courts are not called upon to decide whether the Executive’s deci-
sion was wise as a matter of policy. Rather, they are called upon to
decide only whether what Congress and the President determined to
do as a matter of policy was done negligently. The courts must not,
and, under Supreme Court precedent, cannot, avoid decision of these
cases — and thereby deny to the injured parties that which the SIAA
provides to them — on the speculation that it would be improper for
them to adjudicate related, but different, claims.
Reference to the case before the court today makes this point force-
fully. The plaintiffs have sued the government to recover damages for
the injuries they incurred when they plummeted twenty-five feet over
a dam. They allege that the government had a duty to warn them
about the existence of this dam and that the signs the government
posted in an attempt to fulfill this duty were inadequate to do so. Both
questions are readily susceptible to judicial resolution under estab-
lished principles of tort law, as the panel opinion’s able discussion
readily demonstrates, see McMellon v. United States, 338 F.3d 287,
293-306 (4th Cir. 2003) (holding, after a lengthy discussion, that the
government had a duty to warn the plaintiffs); id. at 313-15 (Nie-
meyer, J., dissenting) (reaching the opposite conclusion, also on the
basis of tort law principles), and neither question raises even a hint
of separation-of-powers concerns. In such a case, the SIAA entitles
demonstrate that, contrary to the majority’s assertion, separation-of-
powers principles do not bar the judiciary from adjudicating the legality
of a significant portion of the Executive’s discretionary functions.
The two cases which the majority relies upon for its assertion that the
caselaw was "ambiguous" prior to 1960, Mandel v. United States, 191
F.2d 164 (3d Cir. 1951), aff’d sub nom. Johansen v. United States, 343
U.S. 427 (1952), and Dougherty Co. v. United States, 207 F.2d 626 (3rd
Cir. 1953) (en banc), are the exceptions that prove the rule. See ante at
27. In both cases, the Third Circuit refused to decide claims questioning
the judgment of military authorities made under extreme duress, claims
the courts have long held to be non-justiciable. See Gilligan, 413 U.S. at
9; Tiffany, 931 F.2d at 278-79. Such cases do not, of course, prove that,
before 1960, some courts held the Judiciary to be incompetent to adjudi-
cate the propriety of the Executive’s discretionary functions writ large,
as the majority does today.
74 MCMELLON v. UNITED STATES

-- 73 of 85 --

the plaintiffs to their day in court, and, in my judgment, the court errs
by denying it to them.
C.
The weakness of Judge Wilkinson’s concurrence renders his opin-
ion a millstone for the majority; indeed, through his opinion, one can
sense the desperateness in the majority’s analysis. Resting, as it does,
exclusively on attempted policy rationales and offering nothing at all
in the way of legal analysis, the concurrence is little short of a full
admission that the majority’s holding actually violates the very
separation-of-powers principles in the name of which it embraces its
interpretation of the SIAA.
1.
Judge Wilkinson approaches decision of the question before us as
if he were an interested legislator, rather than a neutral interpreter of
a legislature’s enactment. Instead of determining what the law is, he
undertakes to determine what, in his view, the law should be. Thus,
when he insists that "any different result [than the one he reaches]
would not be supportable[,]" ante at 31, it is plain upon reading his
opinion that he believes this so only in the sense that a different result
would not meet with his view of the result most desirable as a matter
of policy preference, not because a different result would be unsup-
portable in law. In fact, Judge Wilkinson fully joins in the court’s
opinion holding that the SIAA unambiguously does not contain a dis-
cretionary function exception, a joinder inconsistent with any other
understanding of his opinion.
With scarcely even a mention of the statute that Congress enacted
and that we are charged with interpreting, Judge Wilkinson speaks
repeatedly in the language of legislative deliberation. Throughout his
opinion, he references what we are asked to do, as if Congress’
actions were irrelevant. Illustrative is the following:
[A]ppellants ask us to go much, much farther [than declar-
ing the discretionary function exception inapplicable to this
case] — to indulge in effect the broadest possible waiver of
75 MCMELLON v. UNITED STATES

-- 74 of 85 --

sovereign immunity for the performance of every discretion-
ary governmental function and to disregard the principle that
such waivers of immunity must be narrowly construed.
Ante at 32. But appellants do not ask of us what Judge Wilkinson says
they do. They ask only that we interpret the statute as it was written
by Congress. And, of course, this is all that we are empowered to do.
Notwithstanding Judge Wilkinson’s suggestion to the contrary, we are
not empowered, in this case of straightforward statutory interpreta-
tion, to formulate the desirable scope of sovereign immunity ex cathe-
dra.
Judge Wilkinson believes that the principle that waivers are to be
"narrowly construed" is relevant in this case, and he charges that
appellants have asked the court both "to indulge in effect the broadest
possible waiver of sovereign immunity for the performance of every
discretionary government function and to disregard the principle that
such waivers of immunity must be narrowly construed." He is mis-
taken on both counts, not only as to the governing law, but also as to
the arguments advanced by appellants.
As to the law, the principle that, absent the applicability of any
other principle of interpretation, waivers are to be construed narrowly
quite obviously does not even have any arguable application in this
context. The waiver in the SIAA is unambiguous, as the majority
opinion that Judge Wilkinson joins concludes. See ante at 15. Thus,
under Supreme Court authority, there is no waiver that can permissi-
bly be narrowed — or enlarged, for that matter. Congress has deter-
mined the scope of waiver in the SIAA, and that scope may not be
altered by judicial gloss of the kind superimposed by Judge Wilkin-
son.
As to the arguments made by appellants, nowhere do they ask that
the principle that waivers be narrowly construed be disregarded;
Judge Wilkinson’s charge in this respect is but convenient strawman.
Appellants understand, as does the majority, that that principle is alto-
gether inapplicable in this case. And, of course, neither do they ask
the court to "indulge in effect the broadest possible waiver of sover-
eign immunity for the performance of every discretionary government
function." Ante at 32 (Wilkinson, J., concurring). This, too, is conve-
76 MCMELLON v. UNITED STATES

-- 75 of 85 --

nient hyperbole. All that appellants ask us to "indulge" is Congress’
intent in enacting the SIAA, as revealed by conventional statutory
interpretation. It is conventional statutory interpretation that disposes
of this case, and it is precisely such that forecloses Judge Wilkinson’s
interpretation. It is true that sovereign immunity waivers should not
be "enlarged beyond what the [statutory] language requires[,]" U.S.
Dep’t of Energy v. Ohio, 503 U.S. 607, 615 (1992) (internal quota-
tions omitted), as Judge Wilkinson notes. See ante at 32. But conven-
tional statutory interpretation does not require or even entail such an
enlargement.
With his misplaced view of the question before us as a guide —
that is, the desirability, as opposed to the applicability, of a discretion-
ary function exception — Judge Wilkinson decides the interpretive
question presented by importing wholesale into the SIAA a discre-
tionary function exception from an entirely different statute, the
FTCA. This he does (quite remarkably) at the same time, and even
though, he joins the majority’s holdings both that the SIAA unam-
biguously omits such an exception and that the FTCA’s exception
cannot provide a basis for reading an exception into the SIAA
because "[i]f the exception remained as important to Congress in
1960 when it amended the SIAA as it was when the FTCA was
enacted, then it stands to reason that Congress would have written the
exception into the SIAA then." Ante at 16 (citing Binder v. Long
Island Lighting Co., 933 F.2d 187, 193 (2nd Cir. 1991)).
Notwithstanding his asserted agreement with the majority, Judge
Wilkinson concludes, inconsistently with the majority and in sleight
of hand, that "[t]he language that this court applies today is not lan-
guage that the judiciary has somehow made up on its own. Rather, the
Court adopts Congress’s own explicit expression of separation-of-
powers principles in 28 U.S.C. § 2680(a)." Ante at 33. He observes
that the "discretionary function test in the FTCA" is carefully crafted
language that resolves this case. Ante at 35. All of this as if we were
interpreting the FTCA. Though I would have thought it obvious, it
apparently warrants noting that the statute at issue today is not the
FTCA, 28 U.S.C. § 2680(a), as Judge Wilkinson seems to believe,
but, rather, the SIAA, 46 U.S.C. §§ 741-52. Thus, Judge Wilkinson’s
statement that the language that the court interprets has been "care-
fully crafted" and "resolves this case," ante at 33 must be understood
77 MCMELLON v. UNITED STATES

-- 76 of 85 --

as what it is, incredible. For, by the "carefully crafted" language,
Judge Wilkinson means not the language in the SIAA, but, rather, the
language in the FTCA, language that does not even appear in the act
that we are called upon to interpret today.
Judge Wilkinson suggests that interpreting the SIAA not to include
an exception for discretionary functions, "jettison[s] congressional
language tailored to this very context — governmental tort liability."
Ante at 35. This suggestion is likewise incredible as a judicial obser-
vation: The language that Judge Wilkinson suggests would be "jetti-
soned" does not even appear in the statute we are interpreting. In fact,
so confused is the concurrence that this is the entire point of the dis-
sent, not the majority: Congress "jettisoned" from the SIAA the
exception that it chose to include in the FTCA. And it is this fact that
confirms that there is no discretionary function exception in the SIAA
and that none was intended — at least under established principles of
law.
Unconcerned by the methodological indefensibility of importing
into one statute inapplicable language from an entirely different stat-
ute (not to mention the indefensibility of doing so, while at the same
time acknowledging the inapplicability of that statutory language),
Judge Wilkinson defends his eye-opening mode of interpretation by
arguing that "[t]he fact that we have at hand such a carefully crafted
expression of separation-of-powers principles from a coordinate
branch of government rebuts any suggestion that the court is some-
how on a statutory frolic of its own." Ante at 33 (emphasis added).
Whether or not the majority, in whose opinion Judge Wilkinson joins
but with whom he demonstrably disagrees almost entirely, is on a
"statutory frolic" in its different and conflicting analysis, such a mix-
and-match of admittedly inapplicable language from different statutes
as that performed by Judge Wilkinson certainly does constitute a
"statutory frolic," at least under conventional canons of statutory
interpretation. Even putting aside Judge Wilkinson’s own acknowl-
edgment that the language from the FTCA that he would import into
the SIAA is not applicable, traditional statutory interpretation not only
does not require, it forbids, us to mine all extant statutes, relevant or
not, for language that would have decided the issue if Congress had
chosen to include it in the statute under consideration. Suffice it to say
that this "method of interpretation" is no more legitimate if we only
78 MCMELLON v. UNITED STATES

-- 77 of 85 --

include language from other statutes if, in our view, Congress had "no
practical reason for differentiating" between the two acts. Ante at 35
(Wilkinson, J., concurring). The judgment that Congress had no prac-
tical reason for differentiation is naked policy judgment.
2.
The policy decisions that inform Judge Wilkinson’s interpretation
would be at least somewhat more palatable if they were attended by
legal analysis in support of (even if only incidentally) the policy
objectives that underlay the decisions. But instead of identifying par-
ticular constitutional impediments to the application of this unambig-
uous statute as it is incumbent upon him to do, Judge Wilkinson
merely references nonspecific separation-of-powers "concerns" and
offers roaming generalities about the importance of Executive discre-
tion. Though speaking generally and loosely throughout his opinion
of separation-of-powers "concerns," he never once attempts to iden-
tify these "concerns" and he provides no constitutional authority that
even hints that his "concerns" might require his conclusion as a mat-
ter of law.
Judge Wilkinson notes, for example, that "[t]he executive has an
explicit, not an implicit, duty to see that the laws are faithfully exe-
cuted." Ante at 32 (citing U.S. Const. art. II, § 3). That the Executive
has an explicit duty to execute the laws is of course true — but in this
context, utterly irrelevant. Rather than detailing how the Executive’s
constitutional duty is impeded by the SIAA as written, Judge Wilkin-
son goes on to assert conclusorily that "[t]his duty cannot be dis-
charged without the exercise of some discretion." Ante at 32. Again,
it is not disputable, nor do I dispute, that "some discretion," such as
the "Executive’s exercise of its core prosecutorial discretion," is fun-
damental to Executive power. Supra at 65. But this is to say nothing
of relevance to the disposition of this case. Talismanic reference to
Article II simply does not substitute for legal analysis addressing the
question of whether the limit on Executive discretion imposed by
Congress in the SIAA impermissibly infringes on those Article II
powers. Judge Wilkinson attempts no answer whatsoever to the only
relevant question of what it is about the SIAA as enacted that offends
separation-of-powers principles so grievously, even in light of the
79 MCMELLON v. UNITED STATES

-- 78 of 85 --

protection afforded Executive discretion under the political question
doctrine.
Nor does Judge Wilkinson’s analogy to qualified immunity serve,
even indirectly, as the identification of a separation-of-powers "con-
cern" that would authorize this court’s refusal to apply the SIAA as
written. Judge Wilkinson references this "concern" in this way:
The discretionary function exception is thus implied only in
the same sense that the doctrine of qualified immunity is
implied in the interpretation of 42 U.S.C. § 1983 — on the
premise that without the ability to exercise some element of
judgment in the execution of law, neither federal, state, nor
local government could function.
Ante at 32. But reference to a common law immunity that is read into
the "general language of § 1983" provides no support for reading an
exception into a statute that unambiguously waives immunity.
Perhaps realizing that Congress has the authority to override com-
mon law immunities through the use of express waivers — like the
SIAA — Judge Wilkinson claims that "qualified immunity is an
example of ‘reading into’ a statute a degree of immunity in order to
satisfy, among other things, separation-of-powers concerns," ante at
32 n.1, thereby implying that the same separation-of-powers concerns
that supposedly underlie qualified immunity are relevant to the dispo-
sition of this case. Of course, Judge Wilkinson is able to cite no
authority for his claim that qualified immunity under section 1983
vindicates constitutional separation-of-powers concerns. And this is
unsurprising: The Supreme Court has repeatedly rooted such immu-
nity in the common law, not the Constitution. See Scheuer v. Rhodes,
416 U.S. 232, 241 (1974) (noting that the Constitution provided lim-
ited immunity for legislators, but that "immunity for the other two
branches — long a creature of the common law — remained commit-
ted to the common law"); Owen v. City of Independence, 445 U.S.
622, 634 (1980) ("[Section] 1983 immunity" is "predicated upon a
considered inquiry into the immunity historically accorded the rele-
vant official at common law and the interest behind it.").
Though he believes otherwise, see ante at 33 (Wilkinson, J., con-
curring) (quoting United States v. S.A. Empresa de Viacao Aerea Rio
80 MCMELLON v. UNITED STATES

-- 79 of 85 --

Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)), Varig Air-
lines is similarly unavailing as support for Judge Wilkinson’s disre-
gard of the SIAA’s text on the grounds of separation-of-powers
"concerns." The fact that the Court in Varig Airlines took note of
Congress’ concern that the absence of a discretionary function excep-
tion in the FTCA would result in too much "judicial second-guessing"
does not imply that Congress believed — let alone that this court must
hold — that this sort of "judicial second-guessing" was a violation of
constitutional principles of separation of powers in the FTCA, much
less that it would be such in the SIAA. Judge Wilkinson colorfully,
but analytically meaninglessly, notes that "[e]ven in our modern age,
however, some things are indeed what they seem." Ante at 33. He
draws from the fact that Congress wanted to limit judicial power in
the context of the FTCA that "[t]he discretionary function exception
expresses Congress’ view of that degree of ‘separation’ required by
the executive branch to carry out its duties." Id. Of course, this is not
at all what is most naturally and reasonably to be inferred from Con-
gress’ inclusion of a discretionary function exception in the FTCA.
All that can be legitimately inferred is that Congress believed as a
policy matter and with respect to those matters covered under the
FTCA that a limitation on the role of the courts of the kind enacted
was preferable. An inference, from the inclusion of this exception, as
to broad congressional intent regarding the constitutionally mandated
structure of government across the whole of the United States Code,
of the kind that Judge Wilkinson draws, is not even plausible as a
matter of interpretation.
Finally, in what is presented as the jewel in his crown of authority
in support of his interpretation, Judge Wilkinson resorts to what he
grandiosely refers to as the "considered wisdom of ten other circuit
courts of appeals." But this last effort fares hardly better than any of
his other efforts. We do not determine whether to invalidate a statute
based on what our sister circuits have done, and I would not have
thought one would want to be seen as proceeding in this way. Judicial
interpretation is not an exercise in poll-taking, or at least it should not
be. In any event, Judge Wilkinson himself does not even appear to
believe that we are in receipt of especial wisdom from our sister cir-
cuits on the question with which we are today presented. He joins
fully in the majority’s opinion that all but says (and it, correctly) what
is, at least by connotation, precisely the opposite. See ante at 23 (not-
81 MCMELLON v. UNITED STATES

-- 80 of 85 --

ing the "cursory analysis" of our sister circuits on the issue we address
herein).
3.
As telling as Judge Wilkinson’s failure to identify any constitu-
tional or statutory authority for his conclusion is his complete avoid-
ance of the one doctrine — the political question doctrine — that does
indisputably resolve any valid separation-of-powers concerns that
might exist under the interpretation compelled by the statute’s lan-
guage.
Judge Wilkinson asserts that the failure to imply a discretionary
function exception to the SIAA will subject the United States to "tort
duties and negligence actions, for attempts to enforce immigration
law; to intercept narcotics-smuggling; to protect its airspace from hos-
tile, incoming aircraft; and to safeguard its harbors from biological
agents in container cargo." Ante at 34. However, he does not explain
how these hypotheticals are beyond the reach of the political question
doctrine, and indeed does not even assert that the doctrine will be
unable to resolve them. And, in fact, the political question doctrine is
well suited to answering questions such as those Judge Wilkinson rhe-
torically poses. See supra at 69-75. See also Gilligan, 413 U.S. at 10.
If this were not otherwise evident, Judge Wilkinson himself has previ-
ously said as much, holding in Tiffany, 931 F.2d at 277-79 (quoting
Baker v. Carr, 369 U.S. at 217), that, even where "the discretionary
function exception alone does not capture all the important aspects of
[the] case," there was no judicial review of a mid-air collision
between military and civilian aircraft because "[j]udges have no ‘judi-
cially discoverable and manageable standards for resolving’ whether
necessities of national defense outweigh risks to civilian aircraft" and
cannot "undertake independent resolution without expressing lack of
the respect due coordinate branches of government."
Judge Wilkinson’s only criticism of the political question doctrine
is that it "substitut[es] . . . a judicially-derived doctrine for
congressionally-crafted language," ante at 35, implying that this case
calls upon the court to choose between two competing exceptions to
Congress’ waiver of sovereign immunity, one devised by Congress
and the other developed by the judiciary. Of course, there is no such
82 MCMELLON v. UNITED STATES

-- 81 of 85 --

choice presented to us in this case. In the face of Congress’ clear and
unequivocal waiver of sovereign immunity in the SIAA, the courts
are not authorized to choose the level or type of Executive activity
that they believe should be excepted from the SIAA’s waiver. And
this limit on our authority obtains even when we believe — if not
especially when we believe — as Judge Wilkinson emphatically does,
that the level of liability created by the Act’s broad waiver of immu-
nity would unduly hamper government operations, see ante at 33-34.
Indeed, the courts are constitutionally barred from making such a leg-
islative determination under the circumstances here. We are under
obligation to adjudicate all claims authorized by the language of the
SIAA, unless the decision of those claims would itself violate (not
merely raise "concerns" as to) separation-of-powers principles.
While the political question doctrine brings the court face-to-face
with the separation-of-powers inquiry, see Baker, 369 U.S. at 211
(providing that the political question doctrine is "primarily a function
of the separation of powers"), the application of the discretionary
function exception does not, supra at 72-75. And, on this point as
well, Judge Wilkinson’s silence is telling: although he allows that the
government’s alleged failure to post signs before a dam in this case
may constitute a discretionary function, he does not even begin to
explain how a court’s application of tort law principles to that deci-
sion would violate the doctrine of separation of powers.
4.
In sum, in order to offer any support whatsoever for the majority
(with whom he essentially disagrees) and the interpretation that he
favors (which is irreconcilable with the majority’s, with which he
claims full agreement), Judge Wilkinson must at least identify the
Executive discretion that is both violated by the SIAA’s unambiguous
waiver of sovereign immunity and unprotected by the political ques-
tion doctrine. This issue, he fails even to address, offering instead
only vague platforms about the importance of Executive discretion. In
the end, such but serves as powerful reinforcement of the sense that
lingers after reading the majority opinion, namely, that even were it
legitimate to support the majority’s interpretation with arguments of
judicial policy preference, which to its credit the majority does not
attempt and which Judge Wilkinson dares to attempt but fails to suc-
83 MCMELLON v. UNITED STATES

-- 82 of 85 --

ceed in doing, that interpretation cannot possibly be supported as a
matter of law. And, of course, it is only the latter with which we
ought be concerned.
III.
Just as the principle of separation of powers directs that courts be
wary of exceeding their prescribed role to adjudicate "cases and con-
troversies," it also charges that they be vigilant in fulfilling their con-
stitutional obligation to decide the cases properly before them. In a
narrow set of cases which the Supreme Court has denominated "polit-
ical questions," this obligation must give way in favor of even more
pressing constitutional imperatives. Yet, in all cases, the determina-
tion of whether a case is sufficiently outside the judicial competence
to decide, constitutes a "delicate exercise in constitutional interpreta-
tion," one that may only be undertaken on a case-by-case basis.
Baker, 369 U.S. at 211. The majority’s decision today to exempt from
the SIAA’s waiver of sovereign immunity all liability arising from the
government’s discretionary functions, carelessly abandons this cau-
tious case-by-case analysis in favor of a categorical exception. This
decision, though purporting to be grounded in the principle of separa-
tion of powers but which Judge Wilkinson’s opinion reveals to be
nothing more than a naked policy judgment, actually constitutes an
affront to this principle, by usurping the legislative prerogative that
it professes to protect and abdicating judicial responsibility where the
Constitution requires that it be exercised — both out of a perceived
need to guard against an encroachment on the Executive power that
does not even arguably exist.
The SIAA clearly expresses the will of Congress that individuals
injured by the government be permitted to maintain suit against it
wherever they could maintain a suit against private individuals in a
like situation. The majority itself recognizes that this was the "clear
and unequivocal" intent of Congress. I would give interpretative
effect to this clearly expressed will, as we are required to do, and I
dissent from the majority’s failure to do so.
84 MCMELLON v. UNITED STATES

-- 83 of 85 --

GREGORY, Circuit Judge, dissenting:
The majority’s decision to read an implied discretionary function
exception into the SIAA is based solely on separation of powers con-
cerns. In reaching its decision, however, the majority circumvents tra-
ditional principles of statutory construction, and further fails to
explain how the separation of powers doctrine is implicated by the
plain language of the statute. I agree with the reasoning proffered in
Parts I, II. A and B of Judge Luttig’s dissenting opinion. For those
and the other reasons that follow, I must dissent.
As the majority concedes, "[t]he first step [of statutory construc-
tion] is to determine whether the language at issue has a plain and
unambiguous meaning with regard to the particular dispute in the
case. The inquiry ceases if the statutory language is unambiguous and
the statutory scheme is coherent and consistent." Ante at 15 (quoting
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (citations and
internal quotation marks omitted)). The language of the SIAA is
unambiguous. Indeed, as the majority states, "the plain language of
the SIAA seems to reflect a Congressional intent that discretionary
acts should not be excluded from the waiver of sovereign immunity."
Ante at 15. Thus, the majority’s inquiry should have ceased upon
reading the text of the statute. Nevertheless, after conceding that the
statutory language is unambiguous, the majority proceeds to take its
inquiry outside the text of the SIAA, and delves into the history of the
FTCA in support of its decision to read an implied discretionary func-
tion exception into the SIAA. However, the fact that the FTCA, the
SIAA’s predecessor, contains an express discretionary function
exception weakens the majority’s position, because if Congress
wished to include such a provision in the text of the SIAA, it certainly
could have looked to the FTCA for guidance. Yet, Congress expressly
chose not to include the exception in the SIAA, and the majority’s
attempts to expand an already unambiguous statute are misplaced.
More importantly, the majority fails to demonstrate an independent
separation of powers violation that is caused by the lack of a discre-
tionary function exception in the SIAA. In I.N.S. v. Chadha, the
Supreme Court outlined two ways in which the separation of powers
doctrine may be violated: "One branch may interfere impermissibly
with the other’s performance of its constitutionally assigned function.
85 MCMELLON v. UNITED STATES

-- 84 of 85 --

Alternatively, the doctrine may be violated when one branch assumes
a function that more properly is entrusted to another." 462 U.S. 919,
962-63 (1983) (internal citations omitted). In the instant case, the
majority fails to demonstrate how enforcing the SIAA, as written,
would result in either of these identified separation of powers viola-
tions. Instead, the majority trumpets the fact that ten of our sister cir-
cuits, ante at 13-14, have included an implied discretionary function
exception in the text of the SIAA, and decides to follow suit. How-
ever, those courts had no more authority to read into the SIAA a dis-
cretionary function exception than we do now. Additionally, the
majority provides examples of several cases where courts have
enforced the discretionary function exception created by the FTCA,
and thereby opines that "it becomes apparent that the absence of such
an exception in the SIAA is problematic, to say the least." Ante at 19.
The majority ultimately concludes, without support, that "[a]s these
examples illustrate, if the SIAA does not include a discretionary func-
tion exception, the executive branch’s ability to ‘faithfully execute[ ]’
the law, would be substantially impaired." Ante at 20 (internal cita-
tions omitted). Essentially, the majority holds that because the FTCA
has a discretionary function exception, Congress must have intended
the SIAA, a similar statute, to have an implied discretionary function
exception as well. The majority has embarked upon a slippery slope
of statutory interpretation with no visible end. Surely, the court cannot
suggest, in good faith, that discretionary function exceptions, or any
omitted language, be read into mirror-image statutes when one statute
contains the exception and the other does not. Nevertheless, the
majority reaches this conclusion; one that is best left to the legislature,
and not the judiciary, lest we "assume[ ] a function that more properly
is entrusted to another." Chadha, 462 U.S. at 963. Because the text
of the SIAA is plain and unambiguous and clearly does not contain
a discretionary function exception, I conclude that the reasoning in
Lane is sound. Accordingly, I respectfully dissent.
86 MCMELLON v. UNITED STATES

-- 85 of 85 --