*1 NELSON, Before KRUPANSKY and TODD, Judges, District Judge.* * nessee, sitting by designation. Todd, James D. Honorable Judge of Ten- for the Western District District

413 1986). timely appealed citing Turner KRUPANSKY, Judge. to the language of the Jones Act.1 Turner, plaintiff-appellant Nancy Turner), appealed has (plaintiff or this case government has directed this The court’s dis- memorandum order court’s the district explicit mandate of the attention to against the Ten- instant action missing the FECA, expressly indicates that defendant-appel- Authority, Valley nessee remedy constitutes the exclusive for feder- TVA). Plaintiff is the (defendant or lee employees injured al while the course of Turner, kin of Farrell W. next of wife and employment.2 argued Turner their has on on and was drowned fell overboard who appeal remedy” “exclusive clause that the working from August 1985 while excludes seamen of the FECA E, and which is owned ship, Lucy government, including those the em- Turner initiated this by the TVA. operated argu- ploy support of the TVA. of this pursuant 1986 on March action ment, the lan- plaintiff has referred to (West Act, U.S.C.A.App. 688 Jones § incorporated enabling legis- into the guage in the United States Supp.1988) and TVA, which states that the lation of District of for the Middle District Court persons given em- “shall extend to damages resulting from the Tennessee “[ijnsofar ap- ployment under” the TVA husband, alleging that at the death of her (West 1985). 831b plicable.” 16 U.S.C.A. § E Lucy in issue The place and here time language has rationalized that the Plaintiff thereof unseaworthy and as a result was interpret- applicable” “insofar as should be death. caused her husband’s proximately government employee, according ed as to dismiss the com- The defendant moved Turner, electing option of be- such as 12, 1986, asserting that be- plaint May on equally rem- tween two available employ- husband’s federal cause of her FECA, edies, i.e., pursu- the Jones Act or ment, remedy injury for his exclusive proxi- recovery injuries or death ing a by the Federal Em- was afforded or death negligence mately by the caused (FECA), Compensation Act 5 U.S. ployees’ acting government and suffered while 1980). (West seq. Turner 8101 et C.A. § employment. his the course of within urging employ- that federal countered consistently held has ees, by the employed as seamen who the exclusive the FECA is TVA, remedies under either had alternative employed by feder to individuals available (which applies to fed- specifically the FECA instrumentalities, conclud agencies and al (which Act employees) or the Jones eral from employees are barred ing that such seamen). generally to The district applies Act under the Jones commencing an action that the FECA was court concluded remedial statutes. See Jo or other similar plaintiff remedy available to exclusive States, hansen v. United to dismiss on De- granted the motion (1952); Patterson 96 L.Ed. 1051 Tennessee 1986. Turner v. cember (M.D.Tenn. Auth., F.Supp. v. United Valley employee ry is exclusive pertinent part, or death of an provides, that: Jones Act 1. The liability of the United all other instead any as a of the death of seaman case [I]n employee, instrumentality to the injury personal or the any personal States result may dependents, legal representative, spouse, maintain representative of such seaman his right damages kin, at law with the any person an action for otherwise other next by jury, and in such action all statutes trial damages the United entitled to recover regulating conferring or the United instrumentality because of the States or the railway death in the case of of action for proceeding, judicial injury in direct or death applicable. be shall action, admiralty, an or or in in a civil (West Supp. App. § 46 U.S.C.A. judicial proceeding under a administrative or 1988) Employers (incorporating Liabili- Federal under a compensation statute or workmen’s Act, seq.). ty U.S.C.A. 51 et However, liability this tort statute. Federal apply or a to a master does not applicable FECA states: subsection section of the 2. The vessel. crew of a member of a an in- the United States or 1980) 8116(c) (West (emphasis add- U.S.C.A.§ 5 ed). subchapter strumentality or thereof inju- respect with to the extension thereof employed by the federal ac- curiam); seaman who was (per bringing an Corp. was barred government Lockheed cord Aircraft Act because action (1983) (“FECA’s the FECA. provision remedy” “exclusive *3 provision was enacted exclusive-liability the result affirmed Supreme Court pro- form ... Mandel, substantially present at the in the Third Circuit under stat- from suits the Government tect time, expressly disapproved it same Act, utes, Federal Tort Claims such as the States, Johnson result the Govern- to waive had been enacted that (4th Cir.1950), the Fourth in which F.2d 120 immunity.”); United ment’s permitting affirmed a decision Circuit had 4, Demko, 149, 151 n. v. 385 U.S. federally employed seaman to commence (1966). 4, 382, 384 n. S.Ct. injuries Act for under the Jones a suit Johansen, a conflict clarified In Court acting in the course of his sustained while existed between various authority 439, Johansen, 343 U.S. at employment. previously addressed had circuits which at 856. as the ex- by designating the FECA issue subsequently re Supreme Court to sailors while remedy afforded clusive in Johan affirmed the mandate enunciated government. employ States, in Patterson v. United sen Compensation Employees The Federal 936, 937, 3 L.Ed.2d 971 inju- provide for enacted to Act ... was (1959) curiam) declining to (per (specifically per- employees in the ries to Government Jo- the doctrine announced reconsider It covers all formance of their duties. Patterson, hansen). peti In one of 1916, gave the Enacted in it employees. dam had claimed tioners before exclusive to Government first and wrongful ages for death form, employees compensation for Act; the circuit court’s the Court affirmed States. from the United claim, concluding that sea dismissal of the agencies employed by government

men injuries for in entitled to recover were we convinced that the All in all are only during employment under curred their Employees Compensation Act Federal Patterson, provisions of FECA. remedy civilian sea- is the exclusive for (“The 496, at 79 S.Ct. at 937 public men on vessels. As the Govern- Compensa by the States ‘has established comprehensive sys- ment has created a employ for tion Act a method of redress injuries, payments tem to award for sys two ees. There is no reason to have excep- held to made should not be have (citation omitted).3 ”) tems of redress.1 specific leg- system to that tions without effect. islation to that have considered The federal courts which consistently adhered to this issue have Johansen, 439-41, at 343 U.S. at Johansen Supreme Court’s mandate added). (emphasis Patterson designating the FECA as Johansen, In Court con injuries for sus- exclusive available appeals from different circuit sidered two by employees federal in the course tained appeals simultaneously. In the courts of employment duties. of their Mandel v. United cases, second of these held, courts have uni- States, 191 F.2d 164 (3rd Cir.1951), The lower federal aff'd formly, persons for whom the sub nom. Johansen v. United supplied administra- has an 96 L.Ed.2d 1051 Government precluded (1952), compensation remedy the Third had decided that a tive Patterson, employee awarded particularly of the Government was 3. the Court also noted that, Johansen, opinion injuries damages sustained him in its earlier expressly reject- operated by 72 S.Ct. at it had the United while aboard a vessel reasoning ed the and the result indicated service. States in the merchant Patterson, Marine, n. 79 S.Ct. at 937 n. 359 U.S. at 496 v. [155 the decision in United States (4th Cir.1946) ], a civilian F.2d 456 in which (issue immu- is whether intended recovery against Unit- seeking nity agency in the authorized to “sue and be injuries received ed States sued”). Federal express language under the of their work course Act, Act, or the the Jones Congressional Tort Claims in- demonstrates the Act. Public Vessels provided that the remedies to federal tent scheme Demko, other were “exclusive instead all 384 n. n. Flippo see also added); of the United States or the instru- (emphasis Auth., Valley mentality,” regard 486 F.2d even in to those individ- Tennessee Cir.1973) (seaman employed by (5th agencies empow- 612-13 uals bring action under Jones Act may not enabling leg- TVA under the terms of their ered *4 by provided remedies limited to and was islation to “sue and be sued.” 5 U.S.C.A. Auth., Valley Posey v. Tennessee FECA); (West 8116(c) 1980). § (FECA (5th Cir.1937) 726, F.2d 727-28 93 Employees Compensation The Federal remedy for TVA em provided exclusive provide inju Act ... was enacted to for subject provisions to of ployees; TVA not employees per ries to Government the laws); accord compensation state workers’ formance of their duties. It covers all 37, Co., F.2d Mills v. Panama Canal 272 1916, employees. gave Enacted in it the (2nd Cir.1959) (FECA provided exclu 38-39 right first and exclusive Government employed remedy injured for seaman sive employees compensation, for cert. de Company), by the Panama Canal form, from the United States.... Such nied, 877, 961, 4 L.Ed.2d 362 U.S. 80 S.Ct. comprehensive plan for waiver of sov ex Petition (1960); 876 ereign immunity, spe in the absence Waterway Corp., F.Supp. 212 rel. Inland exceptions, naturally re cific would be per curiam 214, (E.D.La.1962), 215 affd position exclusive.Such garded States, F.2d sub nom. Jarvis United 342 progressive does not run counter to the denied, 831, cert. (5th Cir.), 86 382 U.S. right the to sue the liberalization of 70, (1965). agencies States or its United argument presented by the Nor does wrongs. This Court accepted princi noting separate opinion, in its that dissent ple character of federal exclusive enabling legislation which created the in Feres v. Unit plans compensation empowered agency that specifically TVA States, 135, 153, 95 ed 340 U.S. 71 S.Ct. name,” corporate “sue or be sued [1950]_Much the same rea L.Ed. 152 831c(b) (West 1985), alter the U.S.C.A. § soning leads us to our conclusion that conclusion that the FECA constitutes the Compensation Act is exclusive. injuries remedy exclusive for work-related Johansen, 439-41, at 72 S.Ct. at 343 U.S. by employees maritime sustained added) (emphasis (citing in footnote repeatedly Court has TVA. v. Reconstruction & eight to authority Keifer Keifer general held that “the to ‘sue and 516, 381, 59 S.Ct. Corp., Finance 306 U.S. is to delimited ... be sued’ be [where] (1939) (presumption that a 83 L.Ed.2d 784 types of clearly shown that certain [is] to “sue and be agency empowered statutory suits are not consistent with sovereign immunity from sued” has waived v. Postmaster scheme.” Loeffler — indi- Congress has suit is rebutted where Gen’l, 1965, U.S. -, -, 108 S.Ct. exclu- that another federal cated (quoting Fed (1988) 1969, 100 L.Ed.2d 549 — Admin, -, sive)); accord Burr, eral Hous. 309 U.S. Loeffler (“[WJhen Congress in- at 1973 488, 490, L.Ed.2d 724 60 S.Ct. immunity in tends the waiver (1940)); Franchise Tax Bd. Cal. v. Unit against fed- Serv., cause of action directed 512, 517, a new Postal ed States exclusive, effect, to entities to be 2548, 2553, (1984) eral 104 S.Ct. —in clauses (same); limit the force of ‘sue-and-be-sued’ accord Reconstruction Finance general- See expressly.”). Corp. Corp., —it has said so v. J.G. Menihan Corp. v. ly Lockheed Aircraft 85 L.Ed.2d 595 — U.S. -, denied, (1988); Irvin v. United (1983) (“In en- L.Ed.2d 906 74 L.Ed.2d 911 (6th Cir.), filed, cert. adopted acting FECA], Congress 845 F.2d [the ’ ‘quid, pro quo (U.S. 25, 1988) (same). compromise July principal U.S.L.W. 3123 —the compensa- —commonly found workers’ plaintiff’s Accordingly, contention guaranteed legislation: tion provide that the FECA does not the exclu- immediate, fixed bene- right to receive remedy for seamen sive fits, regardless fault and without need merit, TVA is without and the decision they lose the litigation, but in return court is AFFIRMED. the district Government.”) (emphasis to sue original). NELSON, Judge, DAVID A. dissenting. express By including this limitation FECA, incorpo the text of the which was statutory gloss pro- for the Were it not part enabling rated reference as Posey, Johan- vided decisions such as TVA, 16 legislation created the sen, Flippo, I doubt it would (West 1985), Congress exclud C.A. 831b many people, simply reading on occur to of action ed all other causes statutes, pertinent did *5 against agencies empowered to Valley Authority intend the Tennessee sued,” including suits under “sue be subject to suit under the Act to be Jones Act, as with the the Jones “[inconsistent negligently causing the death of a crew for provided under the ... scheme” a member of TVA vessel. — Gen’l, FECA, v. Postmaster Loeffler Congress passed in When the Jones Act 1969, -, -, 1965, 108 S.Ct. 1920, bringing it authorized the of an ac- (1988) (quoting Federal Hous. damages respect for in of the death of tion Admin, Burr, 242, 245, 60 “any” App. 688. Be- seaman. U.S.C. § (1940)); Franchise 490, 84 L.Ed.2d 724 cause of the doctrine of immuni- Postal Tax Bd. Cal. v. United States subject ty, the United States itself was not Serv., when, Act; but in to suit accord (1984) (same); 81 L.Ed.2d 446 separate Congress created TVA as a v. Reconstruction Fi & Keifer nance Keifer body corporate, Congress gave the new 381, 389, Corp., corporation only immunity limited from (1939) (“The 83 L.Ed.2d 784 Con very day its exist- suit. From the first gressional will must be divined ... ... ence, subject has been to suit in its TVA policy the ascertainment of immanent name, just private corpora- corporate as a utilizing corporations in a series of statutes be, except “specifi- tion would as otherwise governmental drawing purposes (see cally” provided in the Act TVA significance contemporane from dominant 831c(b)) except U.S.C. as otherwise § immunity gov opinion regarding ous the legisla- provided subsequently enacted suit.”). agencies Although ernmental in the TVA Act has Con- tion. Nowhere appreciated, the concerns of the dissent “specifically” provided that gress TVA suggestions indulging specula tenuous should immune from suit under be tion as to the future actions of the Su subsequent only Act —and the enact- Jones preme undermine the doctrine Court would pertinent points precisely ment that See, Major e.g., stare decisis. opposite direction. (6th Cir.1987) (per 835 F.2d applicable,” the Act of as TVA curiam) (Despite regarding “[I]nsofar criticism the Su the “benefits” of the Feder- 1933 extended Feres United preme Court’s decision Compensation Employees al Act of 1916 L.Ed. provi- persons given employment under the (1950) (exclusive compensation 2d 152 Act. 16 831b. sions of the 1933 U.S.C. injuries resulting military pro § service suing under statutes), prohibition against pursuant Whether vided to federal originally perceived as [Supreme] Act was court is “bound to observe the Jones issue.”), thereby cert. the “benefits” bestowed Court’s clear directive on this one of to be the same as that of other busi- appears doubtful for upon TVA ness.” one until reasons. Not several expressly state that Congress

thing, did Posey Valley Authority, In v. Tennessee States and liability of the United (5th however, Cir.1937), 93 F.2d 726 should the FECA instrumentalities Appeals for the Fifth Circuit Court Cir- Congress added when “exclusive”—and be employee cuit decided that because TVA is now codi- exclusivity provision, which injured job who was on the could seek 8116(c), ex- expressly fied 5 U.S.C. § corporation redress under the from the plaintiffs position cepted persons FECA, corporation he could not sue the applica- exception is no less decedent. Flippo under state law. And in v. Tennes- exclusivity general than the to TVA ble (5th Valley Authority, see 486 F.2d 612 provision itself. Cir.1973) case decided after —a “ex- had made “benefits” version of post-1949 language employees except clusive” for all TVA mas- it, FECA, not demon- I read does as of vessels—the ters crewmembers that the rem- Congressional intent strate a injured same circuit held that an TVA sea- are to be provided under the FECA edies could not under maritime man sue TVA liability” all other and instead of “exclusive law. involving masters or claims insofar as announcing Flippo, are concerned. its conclusion in of vessels crewmembers confessed to “a certain sentence of 5 U.S.C. the Fifth Circuit Although the first 8116(c) 8116(e) bewilderment” as how U.S.C. says that the Unit- § cutting off could be read as substantial instrumentality thereof un- or an ed States rights seemed to ex- exclusive, maritime law be sen- the second der the FECA is plain language of pressly reserved tence, majori- 2 of the quoted footnote *6 declaring statutory proviso that “However, provides as follows: ty opinion, exclusivity of the FECA “does subsection apply does not to a master this subsection or a member of a apply not to a master of a crew of a vessel.” or a member F.2d at 612. Flippo, a 486 crew of vessel.” Turner, decedent, Farrell W. Plaintiffs judge whose decision And the able district of a crew unquestionably “a member was appeal us on made a similar is now before vessel had been a vessel.” If that confession; denying plaintiff’s in motion to corpora operated by private a owned and claim, Act dismissal of the Jones reconsider tion, unquestionably corporation would Jr., Wiseman, A. said Judge Thomas Chief subject to suit under the Jones have been urged by plaintiff “have points that Mr. Turner’s death. Act on account of might have carried the logical force and into the Congress having launched TVA 1930s, in the late day they had been made a “sue-and-be-sued” commercial world with had set- progeny become Posey before charter, just Congress in as was clause say to Judge went on tled law.” Wiseman the Postal Service a “sue-and-be- to make appellate court will un- “[pjerhaps an that later, I should entity generation a sued” prece- reexamine the settled dertake to plain thought, have based on words issue; Court feels itself dents at statutes, pertinent that TVA would be bound.” a statute no less amenable to suit under is not decisions Our court bound the Postal Ser as the Jones Act than such course, un- appeals, of other courts of corporation any private would be. vice or Posey/Flippo less reexamination v. Tax Board See Franchise California or precluded by Supreme Court doctrine is U.S.P.S., 512, 104 81 precedent, I would be inclined Sixth Circuit where, (1984), in as noted L.Ed.2d Loef it. to undertake — U.S. -, -, Frank, v. fler deci- no (1988), appears There to be Sixth “the only Supreme Court point. The clause sion held that the sue-and-be-sued might out the that rule cases I know of liberally construed and that must be by Judge Wise- suggested presumed reexamination must be Postal Service’s Johansen and the Su- plaintiffs v. United. Johansen man are could cases that followed it (1952), preme Court 96 L.Ed. legislation” giving “specific to no point including Patterson progeny, and its provided by remedy beyond that them United bar, in the plaintiff case FECA. States and United (1959), L.Ed.2d however, quite position. a different is Demko, general waiver of relying upon a She not none of these L.Ed.2d —and immunity States of a crew holds that the “member cases instrumentality that itself or for a exclusivity provi- exception to a vessel” FECA already in existence when the was what it does not mean of the FECA sion rather, relies, She passed was respect to say with appears a brand statute that created upon a 1933 corpora- government of sue-and-be-sued and, eo in- government corporation new as TVA. such tions stante, corporation that the new declared directly a suit Johansen itself was subject across the board— to suit should be States, not a suit against the United Act, Employ- the Federal corporate instrumentali- against separate law, Act, what- Liability the common or ers the rea- fully grasped have ty. may I provided in except “specifically” as ever — the Johansen decision soning on which meaning, If words have the Act itself. Black, Mr. reasoning that Justice rests — “specifically” ex- nothing the TVA Act dissenting members of speaking for four suit un- corporation new empted the Court, “unique” characterized —but nothing in the Act. And der the Jones my understanding of Johansen’s rationale specifically said of the FECA 1933 version is this: exclusive. was Employees Compensation —The Federal did to the FECA amendments general stat- the first Act of 1916 was exempting TVA from the effect of have put the United ute such as the Federal under statutes suit sovereign immunity the shield of aside per- Employers Liability Act. That was protected the had theretofore change for fectly reasonable injury personal doubt; make, Supreme Court no for as the *7 claims; repeat Johansen was to note —Subsequent general statutes that also Patterson, to have is no reason “[t]here sovereign immunity of the waived at systems of redress.” 343 U.S. two (the Public Vessels Act States 856; 79 S.Ct. at at 359 U.S. at e.g.) “were not usually direct- having pass

of chosen to But 937. toward cases where the United plainly perpetuated sys- ed two a statute already put aside its had sover- and masters for seamen tems redress armor, TVA, eign granting in other no to set relief we have simply ignore it. 343 U.S. at 431 S.Ct. aside or forms.” statute [72 853]. illusions as to the likeli- I labor under no remedy provided under —The Feres being hood of Johansen overruled. remedy, the exclusive usual- thus was the 1949 amendments

ly, even before (1950), a com- L.Ed. 152 somewhat exception for explicit. made handed down the same parable decision ef- practical had no Johansen, therefore seamen two was reconsidered era as Johnson, least in the absence whatever —at years ago fect giving legislation” seamen “specific remedy beyond (1987), majority that made available of the Court conclud- the Feres doctrine should at 440-441 then the FECA. 343 ed message clear That seems 857-58], be modified. S.Ct. at [72 has never enough. But the presented in the case now the issue

decided us, logic I that the believe

before very decision in

the Court’s recent Loeffler (as the view that TVA distin- supports itself)

guished from the United States subject to under the

ought to be held suit It hard for me to under-

Jones Act.

stand, text frankly, fidelity how to the other re-

the statutes could admit

sult. BRUHWILER, R.

Sallee

Plaintiff-Appellee, Beauchamp Brogan, University E. and Dr. TENNESSEE OF UNIVERSITY Tennessee, (argued), C. Leadbetter Ronald Stafford, Defendants-Appellants. D.T. Knoxville, Tenn., Cutting, JoAnn C. Tennessee, Memphis, Mem- University No. 87-6220. Tenn., defendants-appellants. phis, Appeals, United States Court Fields, Richard B. Kathleen L. Caldwell Circuit. Sixth Tenn., plaintiff-ap- (argued), Memphis, Argued Sept. pellee. 18, 1988. Decided Oct. NELSON, Before MARTIN and En Rehearing Rehearing Banc EDWARDS, Judges, and Senior Circuit 1, 1988. Denied Dec. Judge. Circuit MARTIN, Jr., F.

BOYCE Judge. Dr. D.T. Stafford and

Defendants appeal the district University of Tennessee for Sallee R. Bruhwiler judgment court’s *8 discrimination case. this sexual Bruhwiler, female, April In a white toxicologist at the research was hired as a Toxicology Labo- University of Tennessee’s time, Memphis. At this she was ratory in experi- degree in working a master’s on University. Her at the pathology mental she was a satis- indicated that evaluations 1977, Stafford, factory employee. June laboratory, Bruhwiler asked director of the of chief toxi- responsibilities to assume charge running person in cologist, the Nevertheless, laboratory. she the entire and she was officially promoted was not time, salary increase. At not offered a