*1 right of TWA—the purchase American’s procedure; the administrative play full seniority otherwise dictate the (3) arbitrate or employee the Hobson’s the sparing and “ray Extending a integration process. limi letting statute of choice between here, extinguished hope” where the waiver his best advo antagonizing run tations 434-35, any meaningful prospect TWA 436. As at F.2d cate. 831 seniority integration, control pilots could unnecessary litigation, federal avoiding warranted on this record. the union can not recognized that “[i]f Childs employee’s remedy cause of indeed
dissatisfaction, to do allowed it should be IV. so, judicial involve obviating federal thus reasons, I would af- foregoing For the 434; Childs, F.2d see also ment.” judgment of the district court firm 641, International Broth v. Local Whittle summary I judgment on Count granting Teamsters, Chauffeurs, Ware erhood of regarding alleged all of breaches America, AFL- Helpers housemen I concur in duty representation. of fair Cir.1995). (3d CIO, 56 F.3d majority opinion. the remainder dealt with both Childs Whittle overturn unfavorable arbitration claims to union commit- grounds that the
awards on proceedings. arbitration ted errors Childs, represent declined to In union Board due to lack before the Childs which Childs evidence corroborative to the Union provided claimed to have McMELLON; Dawn A. Lori Carrie Whittle, grievance process. during the White; Kathy Templeton; D. Cheri allegedly prosecute failed to the union Plaintiffs-Appellants, Call, joint before the seniority vigorously case Those decisions local committee. resolve dis- policy
premised upon America; United STATES UNITED arbitration, through possible putes where Army Engineers, Corps Of States for involve- obviating the need thus Defendants-Appellees. remedy the is able to ment if the union No. 02-1494. See satisfaction. employees’ cause to Childs, The claims at 434. of Appeals, Court United States for did not accrue those cases therefore Fourth Circuit. until purposes limitations
statute of Dec. 2003. Argued: arbitrator’s employee learned Otherwise, way there was 2004. award. Decided: Oct. they suffered to know whether
employees alleged breach from the union’s loss issued. until arbitration decision Whittle, 56 F.3d at however,
Here, employ- cause was not American’s ee’s dissatisfaction obligation. efforts” breach of “best Rather, sought exactly the Class to facilitate it sacrificed order which *2 Patton, Jay
ARGUED: Douglas Sehroe- der, Maundrell, Powers, Barbiere & Cin- cinnati, Ohio, Appellants. for Dana Joan Martin, Division, Civil United De- States Justice, D.C., partment of Washington, Appellees. Powers, ON BRIEF: Todd M. Schroeder, Maundrell, Powers, Barbiere & Cincinnati, Ohio, for Appellants. Robert McCallum, Jr., D. Attorney Assistant Gen- eral, Warner, Kasey United Attor- States ney, L. Keller, Michael Assistant United Attorney, States Stephen Campbell, R. Branch, Attorney, Trial Torts Divi- Civil sion, Department Justice, United States D.C., Washington, for Appellees. WILKINS, Before Judge, Chief and WIDENER, WILKINSON, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, GREGORY, SHEDD, DUNCAN, Judges. Circuit by published Vacated and remanded opinion. Judge TRAXLER wrote the court, opinion for Judge in which Chief Act, WILKINSON, within the Federal Tort Claims tained Judges WILKINS SHEDD, (West WILLIAMS, KING, §§ 28 U.S.C.A. 2671-2680 & concurred, Judge and which DUNCAN Supp.2003). we Accordingly, vacate the I, II, to Parts concurred as NIEMEYER summary judgment court’s order district *3 IV, Judges in MICHAEL and which and and remand to allow the district court to I, II, III, as to Parts concurred and MOTZ facts this determine whether the of case IV(A). a Judge WILKINSON wrote and exception fall to of within that the waiver Judge NIEMEYER concurring opinion. immunity any to sovereign and conduct from Part dissenting II opinion wrote an might proceedings other that become nec- Judge court. MOTZ the of the opinion of essary. Judge in which opinion, an wrote from Part joined, dissenting MICHAEL I. IV(B) the opinion of the of court. and V facts set out in detail in The relevant WIDENER, LUTTIG, Judges and only briefly will panel’s opinion, the and we dissenting each wrote GREGORY plaintiffs recount them here. The were opinions. jet on the Ohio River in the riding two skis TRAXLER, Judge: Circuit Byrd vicinity of the Robert C. Locks and McMellon, A. Lori Plaintiffs Carrie Dam, government-owned operated and White, Templeton, Kathy D. and Dawn facility plaintiffs on Ohio River. The the damages under the Suits seek Cheri Call approached they what believed Act, §§ 741- Admiralty U.S.C.A.App. turned out to be the bridge but which (the (West or the Supp.2003) “SIAA” gates stop the Unable to or turn dam. “Act”) they they injuries suffered when around, injured the were plaintiffs when Byrd gates of Robert C. over the the went they gates dropped the went over jet riding Dam while skis. The Locks and twenty-five the approximately feet to wa- summary granted judgment court district accident, ter At the time the below. plain- and the government, in favor of the warning signs on the panel of there were several A divided this appealed. tiffs prior precedent dam, plain- court concluded that the the upstream side of but government’s ar- this circuit foreclosed the them, tiffs and their evidence did see Admiralty that Suits in Act gument the signs that the were difficult indicated discretionary an function implied contained brought plaintiffs from the river. The see exception plaintiffs’ that the claims. barred SIAA, alleging this action under the govern- panel The also concluded duty had a to warn about government duty to warn about the exis- ment had signs dangers of the dam dam, panel reversed tence of the satisfy this place inadequate were summary grant judg- court’s the district duty. for further proceed- ment and remanded dismiss, argu- government moved The v. ings. McMellon United See ing protected implied it an was (4th (“McMellon /”). Cir.2003) F.3d 287 exception to function petition for re- government The filed immunity. sovereign waiver SIAA’s regard with the discre- hearing en banc summary also moved for government The tionary exception Sitting issue. function plaintiffs’ judgment on merits banc, govern- that the en we now conclude duty it no had grounds claims on the re- ment’s waiver of the dam and that warn- to warn about Act Admiralty flected Suits event, were, ade- ings provided subject an similar to implied quate. con- authority wrongly See, Relying prior e.g., on from this decided. United States (4th court, rejected Lancaster, gov- court district 7n. Cir.1996) protected by (en banc). that it ernment’s claim was panel opinions implied excep- case, however, question raised the court, however, granted tion. The panel whether a this court likewise government’s summary judg- motion for overrule a pan- decision issued another ment, concluding had question el. The binding effect of a duty to warn about the dam. panel panel opinion on subsequent panels is of agreed in McMellon I district importance operation utmost of this first judge point, but reversed the development court and the law in *4 summary grant judgment, concluding of this circuit. Accordingly, before consider- duty that the in fact had a to ing merits function above, granted warn. As noted we rehear- question, we first important address this ing en to consider whether the banc SIAA procedural issue.1 an implied discretionary contains to its waiver of immu- A number of cases from this court
nity. principle have stated the basic that one panel cannot by overrule a decision issued
II.
panel.
another
typically
This statement is
question
At
heart
presented made in
a party’s request
the course of
to this en
court
the continuing
banc
is
panel
that a
opinion
by
anoth
overruled
viability
of Lane United
529 F.2d
v.
See,
panel.
er
e.g., United States v.
Cir.1975).
(4th
Lane,
175
court
this
(4th
494,
Prince-Oyibo, 320 F.3d
497-98
flatly rejected
argument
that a discre Cir.),
denied,
1090,
cert.
540
124
tionary
should be read
957,
(2003);
Because we are apparently fairly en there is uncommon in power circuit, doubt that we have the given paucity over- this of cases ex rule Lane should we plaining conclude it was how such conflicts should be re- Judge Niemeyer separately Judge writes note Niemeyer it was himself who made strong disagreement his disposition with our important this an by issue in this case virtue question of this and with our decision to even dissenting panel opinion. opin- of his In that Judge Niemeyer address this issue. believes ion, Judge Niemeyer expressed the view that (and portion opinion advisory of our ill- three-judge panels faced with an intra-circuit advised), given sitting that we are banc en should, circumstances, conflict in certain quite clearly power and thus have the over- opinion panel overrule the believes opinion by rule an three-judge panel. issued a wrongly question was decided. Because the Judge Niemeyer accuses the case, arise perfectly did in this we it believe reaching "simply this issue because it believes appropriate question for us to important.” Opinion Judge [the resolve the issue] Niemeyer, note, however, at 37. We this case. infra Inc., Nonetheless, Transp., have made Graham v. Contract we solved. Cir.2000). (8th that, panel as conflicts between F.3d clear rule that application the basic opinions, practice is the We believe better one requires cannot overrule another panel one panel majority by articulated fol- conflict- panel a to follow earlier by pub- lowed most other circuits. When Maryland, Booth See v. ing opinions. panel opinions are direct conflict lished (4th Cir.2003). F.3d issue, given earliest opinion con- agree circuits of the other Most trols, prior opinion unless has been conflicting panel opin- the earlier of follow intervening by opinion overruled See, rel. e.g., Hiller v. ex ions. Oklahoma sitting en this court banc Comm’n, & Parts Motor Vehicle Used course, recognize, of that ap- We Court. Cir.2003) (10th (explaining F.3d require panel of this rule does plication conflict, panel opinions are that when effectively ignore opinions duly certain obligated to the earlier “we are follow panel constituted properly decided one”); Morri- panel over the later decision out pointed Judge the court. And 920, 929 Amway Corp., son I, Niemeyer panel ignore McMellon *5 Cir.2003) (11th (“When in- faced with an level, is, opinion at least on one inconsis- the split apply tra-circuit we must earliest panel with rule one prohibiting tent our rule, authority circuit meaning case when overruling panel opinion. from another conflict, a to the line panel is in should look Mortham, 1177, Walker v. 158 F.3d See case, authority containing the earliest of Cir.1998) (11th (“Of course, by adopt- 1189 prior panel of a cannot because a decision ing the ‘earliest case’ rule resolve intra- (internal later by panel.” a be overturned splits, ignor- a circuit we are still sense omitted)); Southwestern quotation marks panel by ing prior precedent' the rule — Paso, v. F.3d City Bell Tel. Co. El 243 cases, choosing implicit- line of we one are Cir.2001) (“When (5th hold- two 940 the line of cases. This ly overruling other conflict, the ear- ings precedent or lines is, however, necessary consequence of an a controls.”); precedent holding lier or line of The other alter- split....”). intra-circuit Univ., 224 v. State F.3d Kovacevich Kent (followed Circuit), by Eighth the native (6th Cir.2000) (“[WJe must defer 822 however, precisely the same suffers from panel to a case when two decisions prior ig- a panel it allows problem, because Johnson, conflict.”); Ryan opinion in favor of another panel nore one (3rd Cir.1997) (“Under Third 198 Circuit opinion persuasive. that it finds more panel 9.1, Operating Procedure when Internal Thus, approach perfect is a one. neither conflict, court we are two decisions view, however, ap- the alternative In our decision.”); Newell by the earlier bound by Eighth Circuit has utilized the proach Co., F.2d Kenney Mfg. Cos. v. are not attributes negative certain (Fed.Cir.1988) (“This adopted has court earliest-case-governs rule. shared panel of a prior the rule that decisions have the approach would The alternative binding precedent on subse- the court are extending life of intra-circuit effect quent unless until overturned panels subsequent indefinitely, as each conflicts conflict, there is direct in banc. Where considering over which (cita- an issue panel the first.” precedential decision is omitted)). apparently a conflict would was once Circuit, there Eighth how- tions prior itself which free to decide for ever, be approach panel follows different —a iteration to follow. This free decision it wished conflicting precedents [is] “faced with encourage the could almost of the rule which line cases follow.” to choose A panel of intra-circuit conflicts. sider: creation Whether we should overrule Lane way previous- with displeased issue into SIAA- read ly simply could ignore had been decided exception. To put this issue in disagreed, the case which thus cre- context, proper some historical back- ating possibility a conflict and least the ground necessary. analysis panel opin- of the second During part century, the first of this prevail. ultimately ion would government yet United States had contrast, By requiring subsequent pan- waive sovereign immunity admiralty els to follow the earliest of conflicting Thus, actions. if operat- a vessel owned or possibility cases does allow man- government ed damage caused to a ufactured intra-circuit conflicts. addi- vessel, private private owner was with- tion, earliest-case-governs rule brings recourse, out though government, even intra-circuit to an end as soon conflicts as course, could damages pri- seek Walker, they recognized. See vate vessel who negligently owner dam- (“The'earliest F.3d at 1189 n. 25 case’ rule aged vessel. See Canadian (if consistently also applied) has virtue Aviator, Ltd. v. United of bringing splits intra-circuit ato screech- (1945). L.Ed. halt; ing the ‘common sense and reason’ Congress frequently passed private bills rule, contrast, drag splits can such out authorizing for particular relief vessel indefinitely panels reach different dif- damaged by government’s owners ac- ferent conclusions about what is common- tions, proved a method that rather reasonable.”). sensical The rule that id., inefficient, cumbersome and partic- see requires subsequent panels to follow the *6 ularly government, once the through the in earliest case the event of a conflict thus Board, Shipping became the owner of instability unpredicta- minimizes many merchant vessels. See Marine bility that intra-circuit inevitably conflicts Coatings Alabama 71 United create. 1558, (11th Cir.1996). F.3d 1560 1916, In recognize three-judge While we that a Congress passed Act, Shipping 46 panel statutory has the and constitutional 801, § U.S.C.A.App. provided which power to overrule the decision of another “Shipping employed Board vessels while as that, three-judge panel, we believe as a subject laws, merchant vessels were to all prudence, matter a three-judge panel regulations, and governing liabilities mer- power. court should not exercise that chant vessels regardless of the fact that
Accordingly, we conclude that when there
the United States
or
an
owned
had
inter-
is an irreconcilable conflict
opin-
between
Aviator,
in
est
them.” Canadian
324 U.S.
by three-judge panels
ions issued
of this
(internal
219,
quotation
III.
Monroe,
ernment vessels.
See
Lake
246,
proceed
question
460,
We now
250
39 S.Ct.
ee of the whether or the amount in Blanco, controversy. 775 See F.2d at 57 n. discretion abused.” 28 involved 2680(a). 4. once passed, But the SIAA was § most U.S.C.A. (but all) not maritime contract actions in excludes from its reach FTCA volving fell within the ad remedy provided by claims for which a jurisdiction miralty of the district courts the SIAA or the PVA. See U.S.C.A. 28 subject and were not to the Tucker Act. 2680(d). § when the FTCA was See Matson Co. v. Navigation United enacted, sover- the SIAA PVA waived 352, 359-60, 52 S.Ct. only in eign immunity involving pub- cases (1932) L.Ed. (holding 76 336 Thus, admiralty lic or merchant vessels. jurisdiction Court of Claims lacked over a tort or involving public actions not mer- subject whose contract matter was covered pursued chant could be against vessels Act); Admiralty Suits in see also government under the FTCA. United See Tuna, Continental U.S. at 96 Corp., States v. Cont’l United Tuna (explaining S.Ct. 1319 that “contract claims 96 S.Ct. 47 L.Ed.2d encompassed by PVA or [the (1976) “[mjaritime tort (explaining Act, fell within SIAA] the Tucker which beyond claims deemed of [the reach lodged jurisdiction exclusive in the Court brought only SIAA and could be PVA] $10,000”). exceeding Claims claims the law the district side of courts under admiralty practitioner If an guessed wrong Act”); the Federal Tort Claims see also and filed wrong court under the Somerset Co. v. United Seafood act, wrong consequences dire, could be (4th Cir.1951) F.2d (concluding because statutes of limitations under that certain maritime claims fell within the the SIAA and the PVA substantially were jurisdictional scope of the FTCA rather Act, shorter than that of the Tucker SIAA). course, than the Of any such ac- procedure there was no for transferring subject tions FTCA under the would be cases between the Court of Claims and the act, of that including limitations Tuna, district courts. See Continental exception. 172-73, 1319; Blanco, U.S. at time, 57 n. 4. During practice of F.2d at mari time proved law to be com exceedingly Congress put an problems end to these plex. The distinction public between ves First, authorized trans- PVA) (subject sels to suit under the and fers between the Court Claims and dis- (subject merchant vessels to suit under the trict courts for eases filed the wrong *8 SIAA) elusive, and, beyond was noting 86-770, 1-2, §§ court. See Pub.L. No. 74 that mutually the were categories exclu (1960). addition, Stat. 912 Congress sive, difficulty courts had articu precisely by amended the SIAA eliminating the ref- lating types the difference the of id., between erence to 3,§ “merchant See vessel.” Tuna, vessels. See Continental (1960). Thus, 74 912 Stat. after the 1960 1, 1319; at 172 n. see also Blanco amendments, the per- SIAA authorized in States, (2nd v. United 775 F.2d 4 57 n. admiralty against sonam actions the Unit- Cir.1985). matters, To further complicate ed if “[i]n States cases such where vessel the provided Tucker Act general that con piivately operated, were owned or or if tract against government actions the cargo fell such were privately pos- owned or jurisdiction either within sessed, the exclusive private or if a person or property involved, the Court of Claims or the concurrent proceeding were a in admiralty
337 include a U.S.C.A.App. 46 be maintained.” could (West those that previously is relevant to at least as to claims Supp.2003).
§
As
742
FTCA,
case,
brought
worked no would
been
under
amendments
have
this
1960
change
suddenly
the SIAA.
be
to
then the
would
other substantive
waiver of
in areas
it had
exposed
limitations on the
to
where
Specifically,
protected.
those
immunity similar to
con- been
the Act.
were added to
tained
FTCA
The argument
that
the SIAA included
legislative
implied discretionary
is no indication in the
There
initially
the 1960
In De
history
very
intended
was
well received.
States,
anything other than
Corp.
to do
Bardeleben Marine
United
amendments
(5th Cir.1971),
jurisdictional
problems
men
140
Fifth Cir-
correct
F.2d
Nonetheless, courts have
cuit
that a review of the lan-
tioned above.
concluded
legis-
the 1960
consistently
guage
concluded
of the amended SIAA and its
expanded the reach
history
argument:
lative
foreclosed the
greatly
amendments
admi
essentially all
of the SIAA to include
says
legislative history
It is
that the
true
be asserted
ralty tort actions
could
a
nothing concerning purpose to surren-
See,
government.
e.g., Traut
against
der
to claims previously
[as
Inc.,
Steber,
F.2d
v. Buck
man
scope
within
It is
FTCA].
(5th Cir.1982);
v. United
Bearce
true,
§
by
its
equally
though,
(7th
Cir.1980);
614 F.2d
im-
governmental
own terms disavows-
Kelly v. United
munity
admiralty
against
actions
(2nd Cir.1976); Lane,
reason of same narrowly ble constructed enactment 2680(d) § (excluding 28 U.S.C.A. jurisdiction be- solution to conflicts “[a]ny remedy claim for which FTCA the Dis- the Court of tween Claims 741-752, provided by 781-790 sections Courts, ... out to trict set or suits in relating Title to claims problems by elimi- underlying solve the States”). against the United admiralty historic restriction of nating the SIA- liability to non-contractual claims PVA the 1960 amendments After ships cargo. It was SIAA, relating questions began to arise *9 pri- the to the read to in- assimilate Government the should be whether SIAA all to or person function vate relation implied discretionary ex- clude an liability to all, admiralty giving rise claims transactions After ception. Admiralty. incongruous It would fallen be previously had under FTCA that purpose perpe- a subject impute to discretionary to that act’s had been confusion, by reason of choos- If did not trate exception. function the SIAA 338 (9th forum, 1028, by Cir.1991); but wrong importing F.2d 1032 Sea-Land
ing the
Serv.,
States,
and
888,
standards
substantive
Inc. v.
919 F.2d
United
retrospec-
(3d Cir.1990);
defenses
governmental
v.
893
Robinson
United
analysis of what would have been
(In
tive
re
E. &
States
Joint
S. Dists. Asbestos
prior
Reimportation
to 1960.
the case
31,
(2d Cir.1989);
Litig.), 891 F.2d
34-35
pro-
provisions
exceptions
of FTCA
States,
v.
Williams
United
339
nearly
years
twenty
in amended the SIAA
therefore,
interpret
not
the SIAA
should
According
government,
to the
the
with
later.
Congressional
a
inconsistent
manner
that
Second,
legislative history
FTCA shows
contends
government
the
intent.
Congress believed that
the courts would
re-
separation-of-powers
principles
that
government
not hold the
liable for discre-
discretionary actions
quire
tous
exclude
tionary acts
or not
FTCA
im-
whether
the
sovereign
from the SIAA’s waiver
ac-
express exception
in included an
for such
these
munity.
arguments
We consider
810,
Varig,
tions. See
in Title VII is
reflect
deliberate
even
the
requiring
maxim
Congress’s
part.”).
decision
narrow construction of
sover-
waivers of
eign immunity
applicable,
were
the result
Likewise, resort to familiar canons
urged by
government
contrary
the
runs
statutory
to support
construction fails
maxim of statutory
another
construction
interpretation urged by
govern
which cautions that courts cannot “assume
For
example,
ment.
is well established
authority
to narrow the waiver that
immunity
of sovereign
that waivers
“must
Congress intended.” Smith v. United
strictly in
be construed
favor of the sover
States,
197, 203,
507 U.S.
113 S.Ct.
eign
enlarged beyond
and not
what
(1993);
122
Rayonier
L.Ed.2d 548
accord
United,
language requires.”
v. Nor
States
315, 320,
Inc. v. United
77
U.S.
Inc.,
30, 34,
Village,
dic
503 U.S.
S.Ct.
(1957) (“There
374, 1
S.Ct.
L.Ed.2d 354
(1992)
(citation,
117 L.Ed.2d
in
justification
for this Court to read ex-
marks,
quotation
ternal
and alterations
emptions into the
beyond those
[FTCA]
omitted); see also
v.
United States White
by
provided
Congress.
If the Act is to be
Tribe,
465, 472,
Apache
Mountain
537 U.S.
altered that
is a function for the same
(2003) (“Ju
1126, 155
123 S.Ct.
L.Ed.2d 40
it.”).
body
adopted
over
against
risdiction
suit
Gov
Accordingly, we cannot conclude that
requires
ernment
a clear statement from
Congress clearly intended for
SIAA’s
waiving sovereign
States
immu
United
sovereign
waiver of
immunity
subject
to be
nity. ... The terms of consent to be sued
functions,
to an
for discretionary
inferred,
may
unequiv
not be
but
be
must
nor can
reach that
we
conclusion
resort
(internal
ocally expressed.”
quotation
to traditional
tools of statutory construc-
omitted)).
marks
The waiver of
below,
tion. But as we will explain
we
SIAA,
contained within the
how
very
reach that
result
consideration and
ever, is clear and unequivocal, providing
application of separation-of-powers princi-
personam
that an in
admiralty
action
ples.
brought against
government
if such
against
an action could be
maintained
B.
person.
private
Contrary
govern
“Even
country,
before
birth of this
suggestion,
simply
ment’s
we
cannot create
separation
powers
was
to be a
known
ambiguity
by looking
the SIAA
defense against tyranny.”
Loving Unit-
language
structure of
FTCA.
748, 756,
ed
Trustee,
Lamie v. United States
Cf.
(1996) (citing
version of the statute: “One determines
sought
[t]he Constitution
to divide the
contention,
ambiguity,
by rely
under this
powers
delegated
of the new Federal
ing
grammatical
on the
soundness
Government into three
catego-
defined
prior
wrong.
ries,
statute. That contention is
Legislative,
Judicial,
Executive and
starting point
assure,
in discerning congres
as nearly as possible, that
text,
sional intent is
existing statutory
each branch of
con-
(citation
predecessor
and not the
statutes.”
fine
to its assigned
itself
responsibility.
omitted)).
hydraulic pressure
within
inherent
*12
accomplished by
properly
more
other
separate
of
Branches to exceed
each
the
branches,”
“that no
power,
provision
limits of its
even
of law
the outer
objectives,
be
threatens
accomplish
impermissibly
must
the institutional
desirable
of
integrity
the Judicial Branch.”
resisted.
Mistret
ta,
383,
(citation,
U.S. at
109
647
488
S.Ct.
919,
Chadha,
951,
462
103
v.
INS
U.S.
quotation
internal
marks and alteration
(1983).
2764, L.Ed.2d 317
77
S.Ct.
omitted). “Even when a branch does not
of
“concept
separation
powers,”
The
of
itself,
arrogate power to
...
the separa
then,
very
exemplified
is
“the
structure
tion-of-powers
requires
doctrine
”
French,
v.
the
Miller
of
Constitution.
perform
not
impair
branch
another
the
341,
327,
2246, 147
120 S.Ct.
530 U.S.
its
Loving,
ance of
constitutional duties.”
(2000) (internal quotation
L.Ed.2d 326
757, 116
at
517 U.S.
S.Ct.
omitted).
Framers regarded
marks
“The
Supreme
Court has made clear that
had
they
and balances that
the checks
discretionary
exception con-
function
tripartite
into
Federal Govern
built
grounded
is
in separa-
tained
the FTCA
safeguard against
as a self-executing
ment
tion-of-powers concerns. As the Court has
aggrandizement
the encroachment
exception
explained,
“marks
expense
at the
of the other.”
one branch
boundary
Congress’ willingness
between
Valeo,
1, 122,
424
Buckley
96 S.Ct.
v.
U.S.
liability
(1976).
impose
upon
tort
the United
612,
function’ as used
Claims Act
wellspring
correlative, the
really
other side of
sep-
the doctrine of
*13
coin,
pow-
of the
of executive
exercise
powers. Simply stated, prin-
aration of
er.”).
ciples
separation
of
of powers mandate
judiciary
that the
deciding
refrain from
of the
purpose
discretionary
When the
questions consigned to the concurrent
exception
function
FTCA
is consid
government....
branches of the
ered, it becomes
that the
apparent
absence
separation
The
of
powers
doctrine
of
exception
proble
of such an
in the SIAA is
is a
which
doctrine to
must
courts
matic,
say
example,
the least. For
with
adhere
explicit
even
absence of an
a discretionary
exception,
out
function
statutory command. Were
find
we to
government could
held
for
liable
discretionary
function
not
initial decision to build a dam across a
SAA,
applicable
to be
we would
particular navigable waterway or to other
subject all
legislative
administrative and
change the
of a navigable
wise
course
wa
concerning
decisions
the public interest
States,
terway. See Coates v. United
judi-
independent
maritime matters to
(8th Cir.1950)
F.2d
(concluding
cial
not unlikely
review the
event
plaintiffs’
damage
claim
to proper
for
implementation
policy judg-
those
ty
by
caused
government’s
decision to
private
ments were to cause
injuries.
change the course of the Missouri River
Such an outcome is intolerable under
barred
discretionary
was
system
our constitutional
of separation
exception).
could be held
powers.
liable for the
drug-interdic
Coast Guard’s
(cita-
Litig.,
In re Asbestos
powers principles important have question review of the enough require apply courts to a discre- negligence in the military, conduct of tionary function exception to statutes that semi-military, operations. opera- are silent on the issue. that analy- Under tion of ships or land pres- forces sis, then, one would expect to find cases ence of the enemy is a matter where early days from the of the SIAA and PVA judgments frequently have to be made where the impose courts refused to liabili- quickly and judgments where so made ty on the for its conduct of by commanding officers must have all, judicial functions. After prompt and immediate response. It will recognition of the inherent constraints of not, think, we aid in operation our constitutional hardly structure is new. armed propriety forces if the of a com- law, early however, *15 The case is more judgment mander’s is to be tested equivocal on might this score than be ex- years months or afterwards a court pected. What, or a court jury. in light events, of subsequent may appear to be
Certainly there are early some cases a lack of caution have very been the where courts using separation-of-powers- thing necessary, apparently or neces- like language questioned have the wisdom sary, at the time the action was taken. of holding government liable for the actions at issue in those cases. For exam
ple,
States,
in Mandel v. United
191 F.2d
.... No judge
part
has it as
of his
(3rd Cir.1951),
sub nom. Johan
task to act
intelligence
as an
officer for
aff'd
States,
sen v. United
343 U.S.
72 S.Ct.
the armed forces. He cannot tell how
(1952),
Likewise,
Aviator,
in Canadian
Navy
Ltd. v.
destroyer that
returning
was
United
65
position
in a flotilla
Navy
vessels
(1945),
L.Ed. 901
the
of Navy
crew a
after completing a
pick up
mission to
sol-
patrol boat during
diers;
II
World War
instruct-
possibility of a discretionary func-
ed a private
patrol
vessel that
the
exception
discussed);
boat
tion
was not
Pacific-
would escort it into the
Bay.
Delaware
As Atlantic
S.S. Co.
United
Although
the
Court affirmed Man-
address the
discretionary
Third Circuit’s
func-
del,
the Court considered
Johansen,
whether the
analysis.
tion
See
349 case. of the bottom, argument a lier On the merits issue counsel’s reflects At discretionary government, function ex- raised the we conclude concern that the that, broadly although too under the statute is silent on applied been the ception has issue, it the read to and that will likewise be SIAA must include a the FTCA be discretionary to broadly exception under the SIAA. While function applied too sovereign immunity. hereby have some instanc- waiver of it that courts We be overrule Lane v. United discretionary func- applied the FTCA’s F.2d es (4th Cir.1975), to the extent it broadly more than exception tion discretionary might strictly required than concluded that a function ex- intended or does to cases principles, ception apply brought not separation-of-powers under discretionary errors do not war- under SIAA. Because these occasional body exception retreat- from a function under the FTCA and rant wholesale today to developed exception apply refined that-we law that has been and fifty grounded almost As years. over course of both concerns scope separation-of-powers separation powers, explained, we have .the discretionary exception under us to read discretion- function principles require FTCA, SIAA, into the and SIAA should mirror that of the and ary exception function cases decided separation-of-powers it was same function under those Congress to decisions guide create the the FTCA should under concerns that drove court in exception function to the the SIAA. The district this case Airlines, Varig legal concluded as a matter that discre- See FTCA. tionary (explaining exception the discre- function was avail- case, tionary “marks able Congress’ court did not consider boundary willingness therefore between wheth- upon applica- the facts case impose the United er of the warranted tort protect exception.' Accordingly, tion of such its desire certain we States and court to vacate the of the district governmental exposure activities order individuals”). view, give op- remand to the district court private suit our in the first portunity decide instance discretionary function applied excep- the whether the developed has been under today precludes we recognize FTCA the best embodiment of those tion concerns, conduct other plaintiffs’ be- claims and to separation-of-powers and we necessary.9 proceedings might therefore become appropriate lieve that it is application of the guide FTCA cases REMANDED VACATEDAND exception under the SIAA.
WILKINSON, Judge, concur- Circuit ring: V. summarize, Judge Traxler’s happy I am to concur
To
we adhere to the rule
The court holds
opinion
re-
fine
in this case.
previously
in this circuit that
applied
Admiralty
today that
Act
court
the Suits
quires
panel
of this
faced
(West
(SIAA),
§§
741-52
U.S.C.A.
panel opinions
follow the ear-
conflicting
banc,
en
rehearing
panel opinion’s
plaintiffs
discus-
possibility
prevailing
war-
of fewer
-
longer
duty-to-warn question is no
sion of the
conclusion.
rants a different
binding
court is free
authority. The district
novo,
d&
duty-to-warn
issue
panel
upon
opinion
we vacated the
consider
Because
again
government’s
should it arise
on remand.
granting
petition for
*20
subject
exception
&
is
to an
Supp.2003),
Litig.),
31,
& S. Dists. Asbestos
891 F.2d
(2d
excep-
Cir.1989);
similar to the
function
Transport
Canadian
Co.
in
Tort
tion embodied
the Federal
Claims
1081,
v. United
(FTCA),
§§
(D.C.Cir.1980).
Act
28 U.S.C.A.
2671-80
The executive has an ex-
(West
I
Supp.2003).
simply
1994 &
write
plicit,
implicit,
not an
duty to see that the
my
any
state
view
different result
faithfully
laws are
executed. See U.S.
Const,
supportable.
would
be
II, §
art.
duty
3. This
cannot be
discharged without the exercise of some
liability
certainly
against
Tort
lie
will
subject
discretion. For the court to
every
all,
United States under the SIAA. After
such
act
prospect
to the
point
that is the
of immunity
waiver
tort
only
would not
to be
undercut
in
place. may
the first
It
well be that the
command;
an explicit constitutional
inappli-
function
wrongly assign
to Congress the de-
cable on the facts of this case. But appel-
sire to debilitate the executive branch.
much,
go
lants ask us to
much farther —to
The discretionary function exception is
indulge
possible
effect
the broadest
thus
implied
the same sense that
waiver of
immunity
per-
for the
qualified immunity
doctrine of
im-
every discretionary
formance of
govern-
plied in the interpretation of 42 U.S.C.
mental
disregard
prin-
function and to
§
premise
1983—on the
that without the
ciple
that such waivers of
must
ability to exercise some
judg-
element of
Pena,
narrowly
construed. See Lane v.
law,
inment
the execution of
neither feder-
2092,
518 U.S.
116 S.Ct.
al, state, nor local government could func-
(1996);
L.Ed.2d 486
Dep’t
United States
tion.1
Ohio,
607,
Energy
615,
v.
503 U.S.
1627,
(1992);
finds itself
colleagues,
and her
McMellon
presented by
nor
Carrie
by the case
raised
injured
they rode Jet Skis
them
were
when
it believes
who
parties simply because
Byrd dam on the Ohio
astounding
over the Robert C.
yet
it is
more
important. And
River,
against
this action
commenced
majority
announced
to me that the
has
Admiralty
under the Suits
opinion the rule United States
advisory portion of its
this
Act,
was
alleging that the United States
follow the
of this court must
panels
that
to warn
failing adequately
negligent
conflicting opinions,
prior
earliest of
court re-
dam. The district
acknowledges that
them of the
majority itself
when the
claim of sover-
jected the
States’
United
require
of this rule does
“application
that
immunity but concluded
opinions
eign
effectively ignore certain
panel to
duty to erect warn-
had “no
constituted United States
duly
properly
decided
navigation.” Ae-
safe
ing signs
In an-
ensure
Ante at 333.
panel of the court.”
(as
constitutional
guilty
a matter of established
says
mate
My
dissent
that I am
friend in
doctrine)
analysis
any separation-of-powers
Dissenting
op.
overstatement.”
"considerable
during
n.4;
time on
[his]
encountered
tops
[he has]
off
that
id. at 373 n. 6. He
at 367
see also
to over-
Id. at 362. Not
majority's
the federal bench.”
by asserting
point
matter,
cover
assertion does
state the
but this
is “one of
agreement with ten other circuits
ground.
obviously illegiti-
a wee bit of
far-reaching and
the most
summary judgment in
cordingly,
power
it entered
federal courts are without
questions
favor of the United States.
decide
that cannot affect the
rights of
litigants
the case before
only
judgment,
It
entered
them.
we,
banc,
court,
sitting
en
district
Rice,
North Carolina v.
404 U.S.
upon
appeal.
been called
have
review
(1971)
35(c).
(citing
92 S.Ct.
Early
history,
in its
this Court held that
“of
importance
utmost
operation
it had no power
advisory opin-
to issue
this court
the development
and
of the law
...
frequently repeated
ions
and it has
in this circuit.” Ante at 332. The mere
*
majority argues
35(c).
in footnote 1 that this
Local
question
Rule
of how a
three-judgepanel
issue is “in this case” because it came
applies
before
the doctrine of stare
three-judge panel
that considered this
conflicting
decisis when confronted
earlier
procedural history.
case
its
three-judge panels
earlier in
That
decisions of other
not
actually
us,
three-judge
controversy
this issue
advisory
arose before
now before
and our
panel
conflicting precedents
ruling
confronted with
rights
on that issue
does
“affect the
not, however,
litigants
does
make it a live issue for this
of [the]
in the case before [us].”
Rice,
opinion
court
three-judge
en banc. The
of the
der
Ill
above,
First,
the earliest
mentioned
it
simply wrong;
may be
panel decision
given, I
from
For the reasons
dissent
statute,
in-
a
misinterpret
may plainly
I
majority opinion.
Part II of the
concur
stance,
other rules.
conflict with
plainly
in the remainder.
correct
decision seemed
Even if the earlier
MOTZ,
DIANA
Circuit
GRIBBON
rendered,
it
its soundness
at the time was
part
Judge, concurring
dissenting
developments
other
could
disturbed
part:
Second,
allowing
panel
a
in the law.
statutory
holds that
authority would
conflicting
choose between
legislative history
text and
Suits
fully consider
panel
to more
encourage
(SIAA),
Admiralty
app.
Act
46 U.S.C.
finding way
opinions, perhaps
prior
both
(2000),
§§
demonstrate that Con-
741-52
af-
them
distinguish and thus reconcile
not exclude
func-
gress did
Third,
to follow
all.
without directive
ter
express
tions from the SIAA’s
waiver
ap-
panel
opinion,
the earliest
conclusion,
sovereign immunity.
With
call for a
readily the need to
prehend more
completely agree.1 My colleagues pro-
I
banc,
allowing
than
rather
rehearing en
ceed, however,
into” the SIAA
“read
indefi-
or incorrect rule to continue
flawed
waiver
came earliest in
simply because it
nitely,
334, 338, 343,
exception.
Ante
panels of our
separate
two
time. When
Apparently, they
separa-
believe
conclusions,
opposite
come to
circuit have
pre-
somehow
tion-of-powers principles
they
split
which
have
the issue over
as it was
applying
clude us from
the SIAA
one,
and difficult
likely
important
written.
“clear[ly]
'unequivocally]”
banc,
rehearing
with a
en
is best resolved
I
holding,
From this
must
Id. at 344.
to the earliest
not an uncritical reversion
respectfully dissent.
conclusion.
panel’s
I.
disagreeing with the ma-
vigorously
understood as
jority, I do not wish to be
blush,
thought
I
At first
had
our court’s rule
disagreeing Congress in
arguments that
Government’s
decisis
of the doctrine of stare
furtherance
discretionary acts
tended to exclude
*27
pan-
not overrule another
panel
one
should
sovereign
the SIAA’s waiver
all,
panel opinions
and that
over-
a number
carry
day.
el
After
might
It
only by
argu
an en banc court.
ruled
circuits have found such
of our sister
however,
See,
the dis-
e.g.,
to understand
important,
persuasive.
Sea-Land
ments
States,
888,
judicial Serv.,
on the
F.2d
tinction between a limitation
v.
919
Inc. United
(3d Cir.1990);
con-
Robinson v. United
panel
prudential
of a
and
890-91
power
(In
Asbestos
E. & S. Dists.
exerted
the doctrine
stare States
re Joint
straint
(2d Cir.1989);
31, 34-35
Litig.),
not understand and rec-
891 F.2d
If we do
decisis.
States,
Williams ex rel
United
U.S.
S.Ct.
(S.D.Ga.1983);
(2002)
1230,
F.Supp.
581
847
Canadian
152 L.Ed.2d
(holding
258
States,
v.
Transp. Co.
United
doctrine
constitutional avoidance
(D.C.Cir.1980).
1081, 1086
application
“has no
in the absence of statu-
(internal
tory ambiguity”)
quotation marks
however,
majority,
engages in a far
omitted).
and citation
analysis than our sister cir-
more nuanced
Writing
majority, Judge
for the
cuits.
Absent reliance on this doctrine —or
carefully
Trader
examines not
(and
here)
indication
there is none
history
legislative
text and
of the SIAA plain meaning of a statute would lead to
(FTCA),
Tort
Act
Federal
Claims
contrary
results that are
or
absurd
Con
1346,
(2000),
§§
U.S.C.
2671-2680
but also
gress’s purpose judges have no business
—
statutory
relevant canons of
construction.
“read[ing]” provisions
“into” statutes.
Congress
concludes that
to hold
in-
He
Rather,
Ante at
Court
im-
tended the SIAA waiver of
consistently recognized
“duty
has
courts’
munity
subject
“to be
to an
for
reading
phrase
refrain from
into the
discretionary functions” would be untena-
statute when
has left it out.”
Judge
ble. Ante at 340.
Trader’s thor-
200,
Corp.
Keene
v. United
508 U.S.
ough discussion of
these issues
S.Ct.
L.Ed.2d 118
indeed,
completely persuasive;
see,
(1993);
e.g.,
United States Oakland
I find
reasoning
his
be unassailable.
Buyers’
Coop.,
Cannabis
532 U.S.
holding
This
would seem to me to end
(2001)
121 S.Ct.
Of
a court can
into” an
“read
118 S.Ct.
(1997)
ambiguous
provision necessary
statute a
(refusing
L.Ed.2d 215
1097(a)
to save it from a declaration of
§
unconstitu
...
into” 20
“read[ ]
U.S.C.
See,
Davis,
tionality.
e.g., Zadvydas v.
requirement
533 “intent
to defraud”
of 20
678, 689, 696-98,
1097(d)
§
“nothing
U.S.C.
when
(2001)
text, structure,
1097(a)
L.Ed.2d 653
(reading
history
§
a reasonable
ness limitation into the Immigration and
importation”
warranted]
of such a re
Nationality Act in
quirement,
order
avoid its consti
and noting that “this Court
*28
invalidation).
hand,
tutional
In
at
ordinarily
reading
the case
resists
words into a
however,
majority
face”);
expressly
has
held
statute that do not appear on its
the SIAA waiver of sovereign immunity Dep’t
United States
Justice v. Tax Ana
not ambiguous,
136, 154, 109
2841, 106
un
lysts,
but rather “clear and
492 U.S.
S.Ct.
(1989)
equivocal.”
Thus,
Ante at 340.
(refusing
cannot L.Ed.2d 112
to “read into”
rely on the constitutional avoidance doc
the Freedom of Information Act “a disclo
trine.
Dep’t
See
Dev.
exemption
Congress
Urban
sure
did not it-
of Hous.
provide”); Mackey v. Lanier
self
Collec
rate a
function exception into
Serv., Inc.,
826,
Agency
SIAA,
tion
&
486 U.S.
Supreme Court precedent dic
836-37,
2182, 100
108 S.Ct.
L.Ed.2d 836 tates that
we
“read into” the Act such
(1988) (refusing to
into”
“read
ERISA
Indeed,
an exception.
the Court has stat
614(a)
§
a limitation expressly included in ed that to do so
any
absent
such evidence
lawmaking.”
another
provision); Burlington
ERISA
N. would
judicial
“constitute standardless
R.R.
Way
Co. v. Bhd. Maint.
Em
dway
Express, Inc. v. Pip
Roa
429, 447,
1841,
ployees,
er,
481 U.S.
107 S.Ct.
752, 762,
2455,
447 U.S.
100 S.Ct.
(1987)
Act a limitation on union self-help that law); existed the time the Act became acknowledgment Without of this binding United States v. Pa. Indus. Corp., Chem. precedent, the majority relies on as- 655, 663-64, 1804, 411 U.S. 93 S.Ct. 36 serted “separation-of-powers principles” to (1973) L.Ed.2d 567 (refusing to “read into” “read into” the SIAA’s waiver of § the Rivers and Act Harbors immunity a discretionary function excep- provision 1899 a found elsewhere majority tion. The support finds for its Act and in the Rivers Harbors Act of conclusion that separation-of-powers prin- 1905). ciples require extraordinary “reading in” here, In of a holding especially relevant function exception rejected two provides Court the view of sources. Neither several courts basis appeals ignoring and held that a “reasonably established limits of the necessary” qualification constitutional avoidance should not be doctrine or the Supreme statutory repeated “read into” Court’s provision. admonitions 321, judges Henderson v. United not read exceptions qualifi- 476 U.S. (1986). unambiguous 106 S.Ct. cations into L.Ed.2d 299 statutes. here, In another case that resonates A.
Court refused to read into one statute an exception from another “without an affir First, looks to the Congress mative indication” that intended Court’s decision in United States v. S.A.
this, especially
would,
doing
when
so
as Empresa de Viacao Aerea Rio Grandense
here, “carve a substantial slice” from the
Airlines),
(Varig
797, 808,
467 U.S.
statutory coverage. Erlenbaugh v. United
(1984).
There,
S.Ct.
protect that such handicap opinion efficient face of an seriously executive that would operations. was not because courts legislation needed such to imply exception an (internal quota- 814, Id. at 104 S.Ct. —seems just history suggest opposite. This omitted). citation tion and Congress ultimately indicates concluded statement, majority draws From this nothing including any separation-of- — (1) assert- the statement two conclusions: require courts to powers concerns—would dis- [express it edly “makes clear discretionary exception, a function imply cretionary exception [in the function] specific legislation and so it had to enact of [con- embodiment statutory is FTCA] that effect. con- separation-of-powers stitutional] (2) cerns”; understood and when this is function “purpose B. FTCA,” assertedly in the it “be- exception important to the General statements as of such apparent
comes
absence
by
advanced
“the checks
bal-
policies
problematic,
an
Federal
tripartite
... built into the
ances
say the least.” Ante at 341.
Both conclu-
Valeo,
Government,”
1,
Buckley
U.S.
unsupportable.
sions
(1976),
612,
122, 96 S.Ct.
361
(1983). Indeed,
majority
[fjederal
317
itself im-
matter;
the end of the
courts are
plicitly recognizes this. Ante at 343-44 n. bound
apply
by
laws enacted
Congress
(noting Congress
5
can control execution of
respect
...
matters
over which it
by including
laws
statutory
detailed
re-
legislative
has
power.” Stewart Org., Inc.
quirements).
power,
Given this
no separa-
22,
v. Ricoh Corp.,
27,
487 U.S.
108 S.Ct.
tion-of-powers principle prevents Congress
2239,
(internal
(1988)
101
22
L.Ed.2d
quo
choosing
from
to affect the execution of its
omitted).
tation marks and citation
goTo
statutes,
various maritime
indirectly, by beyond applying the
passed
statute
by
imposing
tort
gov-
the federal
effectively
“judicially
ernment.2
it and thereby
rewrit[e]”
impermissibly
contrast,
clear separation-of-powers
“usurp the policymaking
legislative
principles
prohibit
do
courts
duly
functions of
elected representatives.”
“read[ing] into”
the SIAA a
Mathews,
Heckler v.
728, 741-42,
465 U.S.
provision.
function
Because the federal
1387,
(1984).
S.Ct.
362 this be effected we will
III.
which
hereafter examine.
reasons, I would follow
For all of these
XI,
Brutus
January
31
States, Lane v. United
our decision in
(4th Cir.1975), and hold that the
F.2d
LUTTIG,
Judge, dissenting:
Circuit
discretionary function
contains no
analysis on
separation-of-powers
The
sovereign immunity
waiv-
its
majority judi-
strength
of which the
I dissent from the
great respect,
er. With
in Admi-
cially engrafts upon the Suits
contrary conclusion.
majority’s
(SIAA),
§§ 741-
ralty
app.
Act
46 U.S.C.
(2000),
opinion.
excep-
in this
joins
Michael
a
Judge
far-reaching
tion
the most
and
is one of
WIDENER,
Judge, dissenting:
Circuit
(as
illegitimate
a matter of es-
obviously
I would not over-
respectfully
I
dissent.
doctrine)
any
of
tablished constitutional
rule Lane United
when there is
constitution
(togeth-
of the United States
they
it? and
are au-
expressly against
himself, incidentally)
er with the President
meaning,
to construe its
thorised
United States liable
chooses to render
controul?
any
are not under
a boating
by
negli-
accident caused
officials,
power
judicial,
gence
enable
on the same
This
will
government,
private
into al-
terms
them mould the
as would
individual
accident,
they please.
most
manner
liable for such
does not even
shape
Henderson,
"cursory analysis,”
at
ions rest on
ante at
I
Because decision of President) immunity broadly waive Ante at 339. does not itself separation-of-pow- raise concern, ers much less one that would As to legislative history SIAA, of the extraordinary necessitate the interpreta- majority rejects as “rather remarka- judicial tive action implication of a cate- ble” and “difficult ... accept” gov- gorical discretionary exception, argument ernment’s that a remark made which even the majority concedes by Con- an Assistant Attorney General in 1942 intended, gress never I dissent. during congressional hearing on the Fed- Act,1 eral Tort Claims guide should Wilkinson, Judge concurrence, pro- court’s interpretation SIAA, of the which tests, much, but too that the court has not twenty-two was enacted years earlier in gone on “statutory frolic of its own.” 1920 and eighteen years amended later precisely But this is what he proposes. 1960. majority that, explains when And his attempt justify the court’s ac- finally itself enacted the FTCA tion exclusively public policy grounds, years four statement, after this it did not without pass even a at a traditional or accept Attorney Assistant General’s statutory legal analysis, only further high- assurance; instead it included an express lights the legal error by committed for functions of the today. court in the FTCA. See 28 U.S.C. 2680(a). § The majority then reasons I. quite that, rightly if legislative history A. of the FTCA is given any to be effect in SIAA, interpreting the it By every argues against traditional measure of statuto- construing the ry SIAA to include a interpretation, discre- the waiver of the federal tionary function government’s exception: immunity from suit in the SIAA must be read not to include an ex- [discretionary [I]f the excep- functions] ception for discretionary functions. See 46 tion important remained as app. credit, § U.S.C. 742. To its the ma- in 1960 when it amended the SIAA as jority does not even contend otherwise. enacted, was when the FTCA was then SIAA,
toAs the text of the it stands to reason that Congress would explains, have written the exception into the then,
[T]he SIAA includes no list of exceptions particularly SIAA since the 1960 to its waiver of sovereign immunity, but jurisdic- amendments transferred provides only instead govern- tion over a number of claims from the ment is entitled to the limitations of FTCA to the SIAA. that, Attorney
1. The Assistant
expressly
General allowed
tion was not
included in the FTCA.
"claims of the kind embraced
the discre-
Empresa
United States v. S.A.
de Viacao Aerea
tionary
exempted
function would have been
Airlines),
(Varig
Rio Grandense
sovereign
from the waiver of
immunity by
(1984).
suggestion,
B.
to the
ambiguity
looking
the SIAA
acknowledgment
its own
of the
Despite
of
FTCA.
language
structure
the
statutory
nature of the
text and
conclusive
at 340.
Ante
however,
legislative history,
the majority
conclusions,
“required” by
of
the
that it is
each
these
as to
holds
nevertheless
With
text,
statutory
legislative history,
separation-of-powers
to
principles
“read
Act’s
statutory
sovereign
tools of
into
immu-
of traditional
the SIAA’s waiver of
import
the
construction,
agree
nity
discretionary
exception,”
I could not
more.
course,
And,
ma-
agree
Undoubtedly
I
with the
ante at 343.
in an effort to
of
also
that,
play
import
extraordinary
conclusion
the
of its
jority’s understated
down
considerations,
holding,
majority
of these
one “cannot
the
maintains that
it
light
clearly
statutory
that
intended
reaches this result as a matter of
conclude
215,
regard
history
to the
of
2. The evidence with
65 S.Ct.
L.Ed.
(1945) (holding
stronger
guidance
Navy
of a
congressional
the
the
action is even
than
during
to be
control boat
World War II
within
explains.
majority
The SIAA was enacted in
PVA);
coverage
the
of the
McAllister v. United
(and
predating
of the
enactment
FTCA
the imposition
pri-
terms as would
is a function for the same
on the same
altered
States
liable, is about as clear body
adopted
Rayonier
it.”
v.
vate individual
Inc.
intent
congressional
315, 320,
expression
352
77 S.Ct.
United
U.S.
immuni-
government’s
(1957).
waive
374,
Art. of the Constitution.” United irony, majority rejects high In the this Albertini, States v. U.S. holding, actually compelled by which is the (1985). 2897, L.Ed.2d separation in an principle powers, case, im- the SIAA’s waiver majority perceives to avoid what effort the gap no to munity complete is and leaves be be, not, emphatically to but which are two filled; contrary “construction” court’s First, separate principle. to that affronts include missing the Act to an primarily, majority believes represents from the text of the Act itself imposition liability govern- on the with- nothing legislation more than for its acts would rep- ment meaning of As the Su- Albertini. by resent an encroachment preme explained dismissing Court ability to ‘faith- executive “[t]he must branch’s argument similar the FTCA be Const., law, II fully ]’ the U.S. art. func- government read to exclude “core execute! 342; at § 3.” Ante see also id. 343-44 n. liability despite tions” from absence Second, that, statutory majority 5. believe were exemption such an from the text: subject to justification interpreted gov- for this Court to the SIAA “There is to exemptions beyond liability read into Act those ernment for functions, judiciary “the be called A. to upon equipped decide issues is not 1.
resolve,” and would be forced to “second-
As to the first of the majority’s separa-
guess”
policy
the wisdom of
decisions
concerns,
tion-of-powers
the absence of a
government.
made
Ante at 341.
discretionary function exception from the
majority
So severe does the
believe these
SIAA,
be,
may
whatever else it
is not even
potential problems
two
fair
be that a
arguably
impermissible
encroachment
reading
opinion
of its
is that
it believes
on the
duty
Executive’s
to faithfully exe-
likely
that it would
be unconstitutional
cute the
laws. The
effect the SIAA’s
subject
government
blanket waiver of immunity
is
has
to sub-
liability
performance
for its
of discretion-
ject
government
liability
for a larger
ary
acts under
circumstance. See id.
class of conduct than would be the
if
case
at 343^44 n. 5.
government
certain
functions
except-
were
Neither of these two perceived separa-
ed from the Act’s coverage. And not even
tion-of-powers problems
arguably
even
re-
single
identifies a
law that the
that,
quires
categorical matter,
as a
the Executive
prohibited
would be
from or im-
from liability
immune
peded from enforcing were the court
whenever its tortious acts
be charac-
interpret
this broad waiver of sovereign
discretionary.
terized as
majority’s
immunity as it was written to include dis-
statutory
contortion
text of the
functions,
cretionary
or even to explain the
SIAA,
words,
in other
ultimately
inway which the Executive’s enforcement
unnecessary constitution-ally as it is im- powers
could be affected
permissible statutorily.
that such a waiver creates.4
Wilkinson,
Judge
separate opinion,
in his
Ray,
dance of caution. See Pierson v.
argues
excep-
that "the
368 Constitution, it, Article prob- under II of the does not realize Laws”
Although it relating majority immunity, is one to is to funda- lemfacing governmental with misunderstood— It has principles: concepts. I mentally misapprehend both first separa- very fundamentally so—the saying, thought not have it needed that it believes tion-of-powers principle charged the laws the Executive is but holding. its has compels by the to enforce are those enacted Con- lia- immunity from governmental equated only by limited gress. Within contours laws, hold- bility with the execution Constitution, Congress pow- possesses that, government if ing statute parameters legal to set the within which er liable, the Execu- ipso then rendered facto must act and the Executive its officials to the laws has been power execute tive’s remedy injured by provide to citizens (re- at 342 “substantially impaired.” Ante those government’s failure observe government lying examples potential Synar, See Bowsher v. parameters. “if the liability to “illustrate” 92 L.Ed.2d U.S. S.Ct. discretionary function not include a does (1986) Congress (explaining that “once ability the executive exception, branch’s ... enacting legislation makes its choice ‘faithfully the law would be sub- execute[ ]’ can thereafter control the execution [it] (internal stantially impaired”) citation indirectly by passing ... its enactment — omitted); (citing Congress’ ante at 350 Valeo, 424 legislation”); Buckley v. new governmental ac- protect “desire to certain 46 L.Ed.2d exposure by private to suit tivities (1976) (providing “Congress ple- has powers as “separation individuals” authority in it has nary all areas which concern” “drove create legislative jurisdiction long so substantive to the authority the exercise of does not FTCA”); (Wilkinson, also at 350 see ante offend some other constitutional restric- J., concurring) (stating that “the executive tion”) omitted). (internal And citation implicit, duty to explicit, has an not an see so, argument when it does there is no faithfully that the laws are executed” and upon kind that it has encroached ... subject dis- [the Executive’s] that “to II, Article As power. Executive’s sec. 3 cretionary prospect tort act[s] recently explained, the Tenth Circuit con- liability explicit ... undercuts] [that] command”). exercising Ex- when its own equate To stitutional duty “faithfully respect powers public ecutive’s execute the to matters of has, self.”); Berkley City arguable subjected exceptions, Council with two Common Charleston, (4th Cir.1995) discretion- F.3d *37 J., (en banc) (Wilkinson, ary id. dis- since at 305 functions the SIAA's enactment that, matter, senting) (arguing practical disruption "as 1920 without serious Lane, subjecting functioning about [concerns the effect indi- Executive. See 179; legislators liability] pow- are no less at United v. The S.S. Wash- vidual F.2d States Cir.1957); (4th entity legislative ington, itself 241 F.2d Pa- erful when sued”). S.S. Co. v. United cific-Atlantic contends, (4th Cir.1949). Judge consider- is also irrec- Wilkinson also F.2d 632 But it overstatement, that, able of discre- oncilable with numerous other avenues "[s]horn tionary exception, Congress provided challenging the executive has for profoundly impaired propriety would be in car- Executive ac- branch the tion, very ability rying prior to out the has even the Executive's functions (Wilkinson, See, assigned e.g., to it.” at 351-52 take that action. at 370-71 Ante infra J., concurring). (discussing opportunity judicial only can this review Not contention for APA). squared provided NEPA not be with the fact that this Circuit and the right, ‘tak[ing] Yet, the executive role of Care not. the limitation on range executed,’ faithfully that the Laws be is permissible actions that NEPA and the entirely derivative of the passed by laws impose APA do not violate the principle of Congress, and Congress may spe- be as separation powers because those acts of cific in its instructions the Executive Congress, SIAA, like the are the laws that itas wishes. the Executive is charged with executing. Cables, Biodiversity Assoc. v. This is say not to impossible it is (10th Cir.2004) (internal 1152, 1162 citation Congress to enact a law that impermissibly (“To omitted); give specific see id. orders impinges on the Executive’s constitutional by duly legislation enacted in an area prerogatives. Unquestionably, Congress previously where has delegated could do instance, so. For if Congress managerial authority is not an unconstitu subject were to the Executive’s exercise of tional encroachment on prerogatives prosecutorial its core Executive; discretion to merely it is review reclaim the courts, or, formerly delegated authority.”) (emphasis even more dramatically, Dole, in original); Stop H-3 Assoc. v. 870 to significant condition a level of funding (9th 1419, 1437 Cir.1989). F.2d on the exercise of the pardon Executive’s or appointment powers Congress’ in a judgment particular in the SIAA to limit manner, legitimate the Executive’s through questions discretion tort lia- as to the ef- bility on the same terms as would exist for fect of those limitations on indepen- private individual is no less constitutional dence the Executive could be raised. requirement than the under the National See, e.g., Buckley, 424 96 S.Ct. Policy Environmental Act that the Execu- (holding Congress’ constitutional prepare tive first impact environmental power to regulate elections did not allow it statement undertaking before an act that itself, to “vest in officers, or in its harm, cause environmental see 42 authority to appoint officers of the United 4332, or, § U.S.C. even generally, more States when Appointments Clause requirement under the Administrative implication clear prohibits doing it from Procedures Act agencies that Executive so”); Chadha, I.N.S. v. implement the they substantive laws n. 8 & 953 n. charged with enforcing reasonably and L.Ed.2d 317 (reserving question non-arbitrarily, § see 5 U.S.C. 706 (provid- whether Congress power “retain[ed] the ing reviewing that a court shall “hold un- law, ... to enact a in accordance with the action, lawful agency and set aside findings requirements of I Article of the Constitu- and conclusions arbitrary, found to be ca- tion, mandating particular depor- alien’s pricious, discretion, an abuse of or other- tation, unless, course, other constitution- law”). wise not in accordance with Each al principles place substantive limitations statutory obligation constrains the Execu- action,” on such but noting then-Attorney discretion, and, level, tive’s at some each General Jackson’s attack on such a law as subjects the Executive to review of “an departure historical from an unbroken decisions to ensure that it tradition”). American practice and But it abides those procedural constraints. The *38 say is to that the SIAA’s mandate that the and substantive burdens impose these Acts government compensate injured parties for prevent acting the Executive from when it negligent the exercise of the and, otherwise would in Executive’s have some eases in others, the discretion in implement implementing cause Executive to the laws does in ways laws that it otherwise would not even arguably do so. Congress is entitled judgment This is 2. and, one that we are importantly, as make impinge the SIAA only does Not FTCA, the than with the not. No less authority Executive’s directly on the contrary in- that a concern government’s laws, so not even do it does execute heavy impose “a bur- terpretation would fisc, underscoring indirectly through treasury,” is not itself ... on the den constitutionality of the further the even concerns. to raise constitutional sufficient exposes The SIAA
Act as written.
at
Executive that “the Su- contends cautiously may act more tion of the laws made clear that the dis- preme Court has circumstances, or, decide not to in certain exception contained cretionary function have, con- they act where otherwise would grounded separation-of- the FTCA is potential concerns,” of this impact citing support cerned with the powers But, if this is the treasury. opinion on the federal Court’s Supreme contention case, Empresa has made de Viacao it is so because v. S.A. United States Airlines), (Varig policy judgment Aerea Rio Grandense injures those that compensate must (1984). have Ante individual would L.Ed.2d 660 private
whenever
Varig
Air-
and has
Court’s decision
in a like circumstance
to do so
In that
liability.
thing,
held no such
however.
of this
lines
accepted
consequence
*39
case, the
set forth the policy
Airlines,
Court
consid- Ante at 341 (quoting Varig
Congress’
2755)
erations
motivated
creation U.S. at
104 S.Ct.
(emphasis
added).
discretionary
of a
function exception in the
passage
This
not only does not
FTCA;
say
it did not
that these motiva-
separation
mention
of powers,
it
talks
originated
potential
tions
concerns about
plainly and only of the policy consider-
fact,
separation-of-powers problems.
In
as
ations that
influenced Congress’ decision
concede,
majority
compelled
is
discretionary
create a
function exception
phrase “separation
powers”
does not
in the FTCA.
policy consideration,
Neither
appear anywhere in
opinion.
the Court’s
itself,
in and of
demonstrates —even im-
Ante at 341.
plicitly
separation-of-powers
con-
—that
cerns motivated Congress’ adoption of a
majority
dismisses the
absence
exception;
necessar-
separation
mention of
powers
as
ily, neither “makes clear” that this was the
nothing
oversight.
more than mere
It
341;
case. Ante at
(citing
id. at 348
Varig
writes, “Although Varig
not
does
use the
Airlines for the proposition that separa-
phrase ‘separation
powers,’
the Court’s
tion-of-powers concerns
Congress
“drove
explanation of
purpose
behind the ex
to create
excep-
ception makes it clear
is
FTCA”).
tion to the
statutory
separation-of-
embodiment of
powers
(emphasis
concerns.” Ante at 341
begin,
To
Congress
acted out of an
added).
The Fifth Circuit
have be
judicial
aversion to
second-guessing does
case,
lieved this to be the
(citing Pay
id.
necessarily
not
imply anything at all as to
(5th
132, 143
ton v. United
separation
powers.
As
Supreme
Cir.1981) (claiming that,
crux of the
“[t]he
Carr,
Court made clear in Baker v.
concept
embodied
186, 211,
The relevant from Varig Air- mitted the Constitution does not mean provides follows, lines that it is desirable in all cases in which Congress prevent judicial wished to ‘sec- Congress available. could therefore de- ond-guessing’ (or of legislative and adminis- cide that the courts should not review social, trative grounded decisions eco- “second-guess”) a particular class of Exec- nomic, political policy through utive decisions as a policy, matter with- medium of an By action tort. fash- implying out the authorization of ioning for discretionary such review would constitute an unconsti- functions, governmental including regu- tutional encroachment on the Executive. activities, latory fact, took steps to Varig context which the protect Government from Congress’ Airlines Court describes con- seriously that would handicap efficient cern second-guessing sug- about government operations. gests, anything, if made *40 constitutionality of regard judg- that judg- this
just judgment this —and to the FTCA. ment. regard ment—with indi- opinion in the Court’s
next sentence
Thus, notwithstanding
majority’s
judi-
sought to avoid
Congress
cates that
contrary, Varig
contention to the
Airlines
not
Con-
second-guessing,
cial
because
as
guidance
offers
whatsoever
to wheth-
judiciary’s
about the
gress was concerned
discretionary function exception
er the
the Executive function or
assumption of
required
princi-
by separation-of-powers
adjudi-
Judiciary’s inability to
about the
ples.
of the
dis-
propriety
cate the
Executive’s
actions,
“ju-
rather
cretionary
but
because
B.
subject
could
second-guessing”
dicial
liability
seri-
government “to
that would
majority’s
I
then to the
concern
.turn
ously
government oper-
handicap
that, if
is construed
the SIAA
waive
efficient
Airlines,
at
Varig
ations.”
for
government’s
added).
(emphases
functions,
judiciary
upon
will be called
“it is not
questions
equipped
to answer
Congress
does the fact that
Even less
Though
major-
at 342.
resolve.” Ante
decided to include
so,
ity
recognize
does
does
exception in
“to
protect
the FTCA
concern,
heart,
at
separation-of-powers
liability that
Government from
would seri-
asks
case presents
whether
the instant
ously handicap
government opera-
efficient
tions,” demonstrate,
beyond
compe-
issues so far
imply,
or even
essentially
pose
tence as
political
separa-
in deference to
did so
question, rendering
non-justicia-
the case
tion-of-powers principles. Separation-of-
Baker,
at
powers
solely
concerned
ble. See
principles
(“The nonjusticiability of
inter-relationships
with the
between the
a political
a function
govern-
question
primarily
sep-
three
of the
constitutional branches
Indeed,
majori-
aration
Congress’
protect
powers.”).
ment.
desire to
Neither
government
liability
ty’s
judiciary
inter-
fear
“the
nor its
would be
government op-
est
called
to decide issues it
is not
promoting
upon
efficient
resolve,”
any way
equipped
mirrors the Supreme
erations relates
to these rela-
be,
prominent
of the
tionships.
It
Court’s recitation
two
Airlines,
Varig
non-justiciable
un-
suggested
Court
characteristics
cases
operate
question
more effi- der the
doctrine: “a lack
political
immune
ciently
judicially
manageable
if it were
from tort
discoverable
case];”
resolving
for
negligent
[the
the Executive’s
standards for
acts,
deciding
“the
impossibility
has
to sac-
without an
but
chosen
rifice
initial
of a
degree
efficiency
policy
some
in order to
determination
kind clear-
provide
persons injured
ly
nonjudicial
for
for
discretion.”
compensation
Id.
imply anything
such acts does not
with
following: Illustrative is the
vant. much, much go us to [A]ppellants ask C. declaring the [than farther con- Judge Wilkinson’s The weakness to this exception inapplicable opinion a millstone renders his currence in effect the broadest indulge case]—to indeed, through opin- his majority;
for the sovereign immunity waiver of possible ion, desperateness one can sense every discretion- performance for the does, Resting, as majority’s analysis. and to disre- ary governmental function policy rationales exclusively attempted waivers of gard principle that such *44 way all in the of nothing at offering and narrowly construed. immunity must be concurrence is little analysis, the legal not ask of appellants at 350. But do Ante majori- that the of a full admission short says they do. Judge us what Wilkinson actually very sepa- the holding violates ty’s only interpret that we the stat- They ask in the name of principles ration-of-powers And, of by Congress. it written ute as was interpretation it which embraces course, empowered this is all that we are SIAA. Notwithstanding Judge Wilkinson’s to do. contrary, we are not suggestion straightforward 1. in this case of empowered, statutory interpretation, to formulate the decision of approaches Judge Wilkinson immunity ex scope sovereign of desirable if he were an us as question the before cathedra. rather than a neutral legislator, interested princi- Judge believes Wilkinson enactment. interpreter legislature’s of a “narrowly are to be con- ple that waivers is, he determining what the law Instead of case, in he is relevant this strued” view, what, in his to determine undertakes charges appellants that have asked Thus, he insists when law should be. indulge “to in effect the broad- court both the one he “any that result [than different immunity sovereign of possible est waiver ante supportable!,]” would not reaches] be performance every for the reading opinion plain upon at it is his disregard function and to only in the sense that he this so believes immunity principle that such waivers of would not meet with that a different result narrowly He is mis- must be construed.” most desirable as his of the result view counts, as to the taken on both not because a policy preference, matter of law, argu- as to the governing but also in unsupportable different result would be by appellants. ments advanced fact, fully joins Judge law. Wilkinson that, law, principle absent holding that As to opinion in the court’s principle other applicability not contain a unambiguously does SIAA are to be construed joinder interpretation, waivers exception, a discretionary function obviously narrowly quite does not even Wilkinson decides the interpretive ques- any arguable con- application presented by have this tion importing wholesale into unambig- text. The waiver the SIAA is a discretionary function excep- uous, majority opinion Judge statute, as the that tion from entirely an different joins Wilkinson concludes. See ante at FTCA. This he does (quite remarkably) at Thus, time, under Court authori- the same though, joins even he ty, permissibly there is no waiver that can majority’s holdings both that the SIAA enlarged, narrowed —or for that matter. unambiguously omits exception such an Congress scope has determined the exception and that the FTCA’s pro- cannot SIAA, scope may waiver and that vide a for reading exception basis into ,“[i]f gloss not be altered of the kind the SIAA because re- superimposed by Judge Wilkinson. mained important in 1960 when amended the SIAA as it was when arguments by appel- As to the made enacted, the FTCA was it stands to then lants, they nowhere ask that princi- do reason that would have written narrowly ple waivers be construed be into the SIAA then.” Ante disregarded; Judge charge Wilkinson's (citing Long Binder v. Light- Island respect is but convenient strawman. Co., (2nd Cir.1991)). ing understand, Appellants majori- as does the ty, that principle altogether inappli- Notwithstanding agreement his asserted And, course, cable this case. neither with majority, Judge Wilkinson con- they “indulge do ask the court to in effect cludes, inconsistently with the possible the broadest waiver hand, in sleight language “[t]he performance for the every applies today this court is not lan- discretionary government function.” Ante guage judiciary has somehow *45 (Wilkinson, J., This, at 350 concurring). Rather, up made on its own. the Court too, hyperbole. is All ap- convenient that adopts Congress’s explicit own expression pellants to “indulge” Congress’ ask us is separation-of-powers in principles SIAA, intent in enacting the as revealed 2680(a).” § U.S.C. Ante at 350. He ob- by statutory conventional interpretation. “discretionary serves that the function test It statutory interpretation is conventional carefully language FTCA” is crafted case, that disposes precise- of this and it is that All resolves this case. Ante at 352. ly that Judge such forecloses Wilkinson’s of this as if interpreting we were interpretation. It is true that sovereign I Though thought FTCA. would have it immunity waivers not “enlarged should be obvious, apparently it noting warrants that beyond [statutory] language what the re- FTCA, at today statute issue is not the Ohio, quires[,]” Dep’t Energy v. 2680(a), § Judge 28 U.S.C. as Wilkinson believe, but, rather, SIAA, seems (1992) (internal quotations L.Ed.2d 255 Thus, §§ 741-52. Judge U.S.C. Wilkin- omitted), Judge as Wilkinson notes. See language son’s statement that the statutory ante at 350. But conventional interprets “carefully court has craft- been interpretation require does not or even case,” ed” and “resolves this ante at 351 enlargement. entail such an is, must be understood what it as incredi- misplaced For,
With his question “carefully view of the ble. lan- crafted” is, before a guide guage, us as Judge desirabil- Wilkinson means not the —that ity, SIAA, but, rather, opposed applicability, to the language of a the lan- FTCA, exception Judge guage in the that language does — Judge own putting Even aside Wilkinson’s act that in the we appear
not even language that from today. acknowledgment interpret upon called import into the the FTCA that he would inter- suggests Judge Wilkinson traditional statuto- applicable, is not SIAA excep- to include an not preting the SIAA only require, not does not ry interpretation functions, “jettison[s] for tion statutes, forbids, all us to mine extant it to this language tailored congressional not, that would language relevant liability.” tort governmental very context— if had the issue have decided suggestion is likewise at 352. This Ante it in the statute under chosen to include observation: incredible as say it to that this Suffice consideration. suggests Judge language that Wilkinson le- interpretation” is no more “method of ap- even “jettisoned” does not from language if include gitimate we interpreting. we are pear the statute view, if, Congress had in our other statutes fact, the concurrence that so confused is differentiating” reason for practical “no dissent, point is the entire this (Wil- the two acts. Ante between from Congress “jettisoned” majority: kinson, J., judgment concurring). The it chose to the SIAA the reason for practical had no fact in the FTCA. And it is this include policy judgment. naked differentiation is there that confirms that and that intended —at least under estab- none was Judge that inform policy decisions principles of law. lished be at interpretation would Wilkinson’s in- methodological Unconcerned they if palatable least more somewhat defensibility importing into one statute by legal analysis support attended were entirely applicable language (even only incidentally) policy if (not the inde- different statute to mention underlay the decisions. objectives that so, the same fensibility doing while at identifying particular consti- But instead of acknowledging inapplicability time impediments application tutional statutory language), Judge Wilkinson incum- unambiguous statute as eye-opening interpre- his mode of defends do, Judge him to Wilkinson upon bent fact that by arguing tation we “[t]he separation- merely nonspecific references carefully crafted ex- have at hand such a *46 roaming and offers of-powers “concerns” pression principles separation-of-powers generalities importance about the of Exec- from a coordinate branch of gener- Though speaking utive discretion. any suggestion rebuts that the court is ally loosely throughout opinion his statutory on a of its own.” somehow frolic “concerns,” he never separation-of-powers added). (emphasis Ante at 351 Whether identify “concerns” attempts once these majority, opinion or not whose authority no constitutional provides and he Judge joins but with whom he Wilkinson might hints that his “concerns” that even entirely, demonstrably disagrees almost is his conclusion as a matter law. require “statutory on a frolic” in its different and notes, example, for that Judge Wilkinson conflicting analysis, such a mix-and-match explicit, has an an admittedly language from executive inapplicable “[t]he duty to see that the laws are performed by implicit, different statutes as (citing faithfully executed.” Ante at 350 Judge certainly constitute Wilkinson does Const, 3). II, § Execu- frolic,” art. That the “statutory at least under conven- U.S. explicit duty an to execute the statutory interpretation. tive has tional canons of context, reading course true —but in this for into a laws is of statute that utterly detailing unambiguously immunity. irrelevant. Rather than waives duty Executive’s constitutional is how the Perhaps realizing that Congress has the written, Judge the SIAA as impeded authority to common override law immuni- conclusorily on to goes Wilkinson assert through ties express the use of waivers— duty discharged cannot be “[t]his Judge like the claims Wilkinson SIAA— without the exercise of some discretion.” that “qualified immunity is an example of Again, disputable, Ante at 350. it is not ‘reading degree into’ a statute a of immu- discretion,” dispute, I that “some nor do nity in satisfy, among order other such as the “Executive’s exercise of its things, concerns,” separation-of-powers discretion,” prosecutorial core is funda- 1, thereby implying ante at 350 n. power. Supra mental to Executive at 369. separation-of-powers same concerns say But nothing this is relevance to supposedly qualified immunity underlie disposition of this case. Talismanic disposition relevant to the of this case. Of simply reference to Article II does not course, Judge Wilkinson is able to cite no legal analysis addressing for substitute authority claim qualified for his immu- question of whether the limit on Executive nity under section 1983vindicates constitu- imposed by discretion tional separation-of-powers concerns. And Ar- impermissibly infringes on those unsurprising: this is Court II powers. Judge attempts ticle Wilkinson repeatedly immunity has rooted such no answer whatsoever to the relevant law, the common not the Constitution. See question of what it is about the SIAA as Rhodes, 232, 241, Scheuer v. enacted that separation-of-powers offends (1974) 1683, 40 (noting S.Ct. L.Ed.2d 90 principles grievously, light so even provided the Constitution limited im- protection afforded Executive discre- munity legislators, for “immunity but that political question tion under the doctrine. long the other two a crea- branches — Judge analogy Nor does Wilkinson’s to ture of the common law—remained com- serve, qualified immunity indirectly, even law”); City mitted the common Owen v. as the of separation-of-pow- identification Independence, 445 U.S. ers “concern” that would authorize this (1980) (“[Sec- 1398, 63 L.Ed.2d to apply court’s refusal the SIAA as writ- immunity” “predicated upon is tion] Judge ten. Wilkinson references this inquiry immunity considered into the his- way: “concern” torically accorded the relevant official at it.”). common and the interest behind law implied only thus in the same sense that otherwise, Though he believes see ante the doctrine im- qualified (Wilkinson, J., concurring) (quoting at 351 plied interpretation 42of *47 U.S.C. Empresa United States v. SA. de Viacao § premise 1983—on the that without the Airlines), (Varig Aerea Rio Grandense ability judg- to exercise some element of 467 U.S. law, in ment the execution of neither (1984)), Varig L.Ed.2d 660 Airlines is sim- federal, state, government nor local ilarly Judge unavailing support as for Wil- could function. disregard kinson’s of the text on SIAA’s grounds separation-of-powers at “con- Ante 350. But reference to a common Varig in law that is read into the cerns.” The fact that the Court “gener- language Congress’ § al concern provides support 1983” Airlines took note poll-taking, in tation is not an exercise func-
that the absence event, any in in the FTCA would result at least it should not be. exception tion “judicial second-guessing” does even too much himself does not Judge Wilkinson Congress believed—let imply receipt in to believe that we are appear court must hold—that alone that this circuits on especial wisdom from our sister second-guessing” was a “judicial sort today pre- question with which we are sep- principles constitutional violation of joins fully majority’s in He sented. FTCA, less much powers aration of (and it, correctly) says opinion all but Judge in the SIAA. be such that would connotation, is, precisely what at least analytically colorfully, but Wilkinson (noting the opposite. See ante at 344 in our meaninglessly, “[e]ven *48 Carr, at to as Baker v. thought
have
one would want
be seen
691), that,
“the
proceeding
way.
interpre-
in this
even where
Judicial
Baker,
capture
ration-of-powers inquiry,
alone does not
see
case,”
aspects
(providing
352, implying upon that this case calls competing court to choose between two sum, In order to offer support exceptions Congress’ waiver sover- (with for majority whatsoever whom he eign immunity, by Congress one devised essentially disagrees) and interpreta- by developed judiciary. (which and the other tion that he favors is irreconcilable course, present- no such Of there is choice majority’s, with the with which he claims In ed to us this case. the face of agreement), full Judge Wilkinson must at Congress’ unequivocal identify clear and waiver of least the Executive discretion that SIAA, sovereign immunity by unambigu- is both violated the SIAA’s sovereign immunity ous not waiver and un- courts are authorized choose the by protected political question doc- type activity level or of Executive issue, address, trine. This he fails even to they excepted believe should be from the only offering vague platforms instead SIAA’s waiver. And this limit on our au- importance about the of Executive discre- thority obtains even when we believe—if end, tion. pow- such but serves as especially Judge when we believe—as lin- erful reinforcement of the sense that does, emphatically Wilkinson that the level gers reading majority opinion, after created the Act’s broad waiv- namely, legitimate that even were it unduly hamper gov- er of majority’s support interpretation operations, ante at ernment see 351-52. arguments judicial policy preference, Indeed, constitutionally the courts are which to its credit the does not making legislative barred from such a de- attempt Judge and which dares Wilkinson termination under the circumstances here. attempt doing, but fails to succeed in adjudicate obligation We are under all interpretation possibly sup- cannot be language claims authorized And, course, ported as matter of law. SIAA, unless the decision of those claims ought latter with which we be (not merely would itself violate raise “con- concerned. to) separation-of-powers princi- cerns” as ples. III. separation political question principle
While the doctrine Just as the brings sepa- powers wary the court face-to-face with the that courts of ex- directs *49 im- adjudicate majority’s decision to read an role to The
ceeding prescribed their controversies,” charges plied discretionary it also into and “cases solely separation in con- is of vigilant fulfilling their the SIAA based they be decision, reaching cases concerns. In powers to decide the obligation stitutional however, majority tradi- a narrow set circumvents before them. properly construction, principles statutory has de- tional Court cases which explain sepa- how the questions,” this obli- and further fails to “political nominated way powers implicated in favor of even more ration of doctrine is gation give must Yet, agree I imperatives. plain language of the statute. pressing constitutional I, cases, reasoning II. proffered of whether a with the Parts in all the determination judicial Judge Luttig’s dissenting opin- com- A B sufficiently outside the and case is decide, For those the other reasons that constitutes “delicate ion. petence to follow, I interpretation,” must dissent. exercise constitutional may only be undertaken on a one that concedes, majority As the first “[t]he Baker, case-by-case basis. statutory is to deter- step [of construction] majority’s 691. The decision language mine whether the at issue has a today exempt from the SIAA’s waiver of plain unambiguous meaning with re- arising all sovereign gard particular dispute the case. discretionary func- government’s from the inquiry statutory ceases if the lan- tions, cautious carelessly abandons this guage unambiguous statutory and the is case-by-case analysis categori- favor of scheme is coherent and consistent.” Ante decision, though pur- This exception. cal Sigmon Barnhart v. (quoting at 339 Coal principle porting grounded to be Co., Judge separation powers but which Wil- (2002) (citations L.Ed.2d 908 and internal nothing to be opinion kinson’s reveals omitted)). quotation language marks policy judgment, naked actu- more than a Indeed, unambiguous. SIAA ally principle, an affront to this constitutes states, majority plain language “the legislative by usurping prerogative Congressional seems to reflect a protect abdicating that it professes intent that acts should not be responsibility where Constitu- excluded from the waiver of im- tion it be exercised—both requires Thus, majori- munity.” Ante at 339. perceived guard against out of need to ty’s inquiry upon should have ceased read- power an on the Executive encroachment Nevertheless, ing the text of the statute. arguably exist. does not even conceding statutory after lan- clearly expresses the The SIAA will guage unambiguous, majority pro-' injured individuals inquiry ceeds to take its outside the text of permitted to maintain suit SIAA, history and delves into the against they maintain a it wherever could support of its decision to read FTCA against suit individuals in a like private implied discretionary an function exception recognizes situation. The itself However, into the fact that the SIAA. unequivocal” that this was the “clear and FTCA, predecessor, the SIAA’s contains give interpre- I Congress. intent of discretionary express excep- will, clearly expressed tative effect to this majority’s position, tion weakens the be- do, required as we and I dissent if to include cause wished such majority’s from the failure to do so. SIAA, provision in the text of the it cer- GREGORY, tainly could have looked to the Judge, dissenting: Circuit FTCA *50 discretionary exception, Congress function Yet, expressly chose guidance. SIAA, must have intended the SIAA, exception a similar not to include an majority’s attempts expand statute, an implied discretionary and the to have are mis- unambiguous statute already majority function as well. The exception placed. upon slippery slope has embarked a statutory interpretation with no visible majority fails to importantly, the
More
Surely,
suggest,
end.
the court cannot
independent separation
an
demonstrate
faith,
good
function ex
that is caused
the lack
violation
powers
ceptions,
language,
omitted
be read
exception in the
discretionary function
of a
Chadha,
mirror-image
into
statutes when one stat
v.
I.N.S.
SIAA.
and the other
exception
ute contains the
ways
sepa
in which the
outlined two
Court
Nevertheless,
majority
may
violated: does not.
powers doctrine
ration of
conclusion;
impermissibly
interfere
reaches this
one that is best
branch
“One
of its consti
performance
legislature,
judicia
other’s
and not the
with the
left to the
Alternatively,
function.
tutionally assigned
ry, lest we
function that more
]
“assume!
when one
may be violated
properly is entrusted to another.” Cha
the doctrine
prop
function that more
dha,
assumes a
branch
at
separation powers fact that majority trumpets ten circuits, 338-39, ante have our sister discretionary function implied included an SIAA, exception the text of the However, those to follow suit. decides authority more to read into courts had no excep OLATUNJI, the SIAA K. Petitioner- Clifford Additionally, the than we do now. tion Appellant, examples of several majority provides have enforced the dis cases where courts
cretionary created ASHCROFT, Attorney John General FTCA, “it thereby opines States, Respondent- the United that the absence of such apparent becomes Appellee. problematic, in the SIAA is No. 00-6650. Ante at 342. The say the least.” concludes,
ultimately support, without Appeals, United States Court illustrate, examples if the SIAA these “[a]s Fourth Circuit. discretionary function does not include a ability branch’s exception, the executive 4,May 2004. Argued: law, ‘faithfully would be sub ]’ execute! Decided: Oct. (internal stantially impaired.” Ante at 342 omitted). Essentially, majori citations the FTCA has
ty holds that because
notes
“cursory analysis” of our sister circuits on
however,
things are in-
age,
some
modern
herein).
the issue we address
Ante at 351. He
they seem.”
deed what
wanted
draws from the fact
3.
of the
judicial power
to limit
the context
telling
Judge
failure
As
as
Wilkinson’s
discretionary function
“[t]he
FTCA that
statutory
identify any
to
constitutional or
expresses Congress’ view of that
exception
complete
is his
authority for his conclusion
‘separation’ required
the ex-
degree of
political
avoidance of the one doctrine —the
carry
out its duties.” Id.
ecutive branch
question
indisputably
doctrine —that does
course,
all
is most
this is not at
what
Of
any
separation-of-powers
valid
con-
resolve
reasonably to
naturally and
be inferred
might
interpre-
cerns that
exist under the
Congress’ inclusion of a
from
language.
compelled by
tation
the statute’s
All
in the FTCA.
that the failure
Judge Wilkinson asserts
legitimately inferred is that Con-
can be
imply
policy
as a
matter and with
gress believed
subject
to the SIAA will
the United States
covered under the
respect to those matters
actions,
negligence
to “tort duties and
role of the
FTCA that a limitation
law;
attempts
immigration
preferable.
enforce
courts of the kind enacted was
inference,
intercept narcotics-smuggling;
protect
An
from the inclusion of this
hostile,
aircraft;
congressional
incoming
intent
exception,
airspace
as
broad
from
constitutionally mandated
regarding
biologi-
safeguard
and to
its harbors
across the whole
structure of
cargo.”
Ante at
agents
cal
container
Code,
of the
of the kind that
United States
However,
explain
he does not
how
draws,
Judge
plausi-
is not even
Wilkinson
beyond
hypotheticals
these
the reach
as
interpretation.
ble
a matter of
doctrine,
in-
political question
deed does not even assert
doctrine
jew-
Finally,
presented
as the
what is
And, in
will be unable to resolve them.
authority
el in
support
his crown of
fact,
political question
doctrine is well
interpretation, Judge
his
resorts
Wilkinson
answering
questions
suited to
such
refers to as
grandiosely
to what he
rhetorically poses.
Judge
those
Wilkinson
of ten other circuit
“considered wisdom
Gilligan,
at
also
supra
See
372-76. See
But this last
appeals.”
courts of
effort
2440. If this were
hardly
fares
better than
of his other
evident, Judge
not otherwise
Wilkinson
do not determine whether to
efforts. We
much,
previously
has
said as
hold-
himself
invalidate a statute based on what our
done,
ing Tiffany,
(quoting