McMellon v. United States

387 F.3d 329

Carrie A. McMELLON; Lori Dawn White; Kathy D. Templeton; Cheri Call, Plaintiffs-Appellants, v. UNITED STATES of America; United States Army Corps Of Engineers, Defendants-Appellees.

No. 02-1494.

United States Court of Appeals, Fourth Circuit.

Argued: December 2, 2003.

Decided: October 14, 2004.

Appeal from the United States District Court for the Southern District of West Virginia, Joseph R. Goodwin, J.

ARGUED:

Jay Douglas Patton, Schroeder, Maundrell, Barbiere & Powers, Cincinnati, Ohio, for Appellants. Dana Joan Martin, Civil Division, United States Department of Justice, Washington, D.C., for Appellees.

ON BRIEF:

Todd M. Powers, Schroeder, Maundrell, Barbiere & Powers, Cincinnati, Ohio, for Appellants. Robert D. McCallum, Jr., Assistant Attorney General, Kasey Warner, United States Attorney, Michael L. Keller, Assistant United States Attorney, Stephen R. Campbell, Trial Attorney, Torts Branch, Civil Division, United States Department of Justice, Washington, D.C., for Appellees.

Before WILKINS, Chief Judge, and WIDENER, WILKINSON, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, GREGORY, SHEDD, and DUNCAN, Circuit Judges.

Vacated and remanded by published opinion. Judge Traxler wrote the opinion for the court, in which Chief Judge Wilkins and Judges Wilkinson, Williams, King, Shedd, and Duncan concurred, and in which Judge Niemeyer concurred as to Parts I, II, and IV, and in which Judges Michael and Motz concurred as to Parts I, II, III, and IV(A). Judge Wilkinson wrote a concurring opinion. Judge Niemeyer wrote an opinion dissenting from Part II of the opinion of the court. Judge Motz wrote an opinion, in which Judge Michael joined, dissenting from Part IV(B) and V of the opinion of the court. Judges Widener, Luttig, and Gregory each wrote dissenting opinions.

TRAXLER, Circuit Judge:

Plaintiffs Carrie A. McMellon, Lori Dawn White, Kathy D. Templeton, and Cheri Call seek damages under the Suits in Admiralty Act, 46 U.S.C.A.App. §§ 741-52 (West Supp.2003) (the "SIAA" or the "Act") for injuries they suffered when they went over the gates of the Robert C. Byrd Locks and Dam while riding jet skis. The district court granted summary judgment in favor of the government, and the plaintiffs appealed. A divided panel of this court concluded that prior precedent from this circuit foreclosed the government's argument that the Suits in Admiralty Act contained an implied discretionary function exception that barred the plaintiffs' claims. The panel also concluded that the government had a duty to warn about the existence of the dam, and the panel reversed the district court's grant of summary judgment and remanded for further proceedings. See McMellon v. United States, 338 F.3d 287 (4th Cir.2003) ("McMellon I").

The government filed a petition for rehearing en banc with regard to the discretionary function exception issue. Sitting en banc, we now conclude that the government's waiver of sovereign immunity reflected in the Suits in Admiralty Act is subject to an implied exception similar to the discretionary function exception contained within the Federal Tort Claims Act, 28 U.S.C.A. §§ 2671-2680 (West 1994 & Supp.2003). Accordingly, we vacate the district court's summary judgment order and remand to allow the district court to determine whether the facts of this case fall within that exception to the waiver of sovereign immunity and to conduct any other proceedings that might become necessary.

I.

The relevant facts are set out in detail in the panel's opinion, and we will only briefly recount them here. The plaintiffs were riding two jet skis on the Ohio River in the vicinity of the Robert C. Byrd Locks and Dam, a government-owned and operated facility on the Ohio River. The plaintiffs approached what they believed to be a bridge but which turned out to be the gates of the dam. Unable to stop or turn around, the plaintiffs were injured when they went over the gates and dropped approximately twenty-five feet to the water below. At the time of the accident, there were several warning signs on the upstream side of the dam, but the plaintiffs did not see them, and their evidence indicated that the signs were difficult to see from the river. The plaintiffs brought this action under the SIAA, alleging that the government had a duty to warn about the dangers of the dam and that the signs in place were inadequate to satisfy this duty.

The government moved to dismiss, arguing that it was protected by an implied discretionary function exception to the SIAA's waiver of sovereign immunity. The government also moved for summary judgment on the merits of the plaintiffs' claims on the grounds that it had no duty to warn about the dam and that the warnings it provided were, in any event, adequate.

Relying on prior authority from this court, the district court rejected the government's claim that it was protected by an implied discretionary function exception. The court, however, granted the government's motion for summary judgment, concluding that the government had no duty to warn about the dam. The panel in McMellon I agreed with the district judge on the first point, but reversed the grant of summary judgment, concluding that the government in fact had a duty to warn. As noted above, we granted rehearing en banc to consider whether the SIAA contains an implied discretionary function exception to its waiver of sovereign immunity.

II.

At the heart of the question presented to this en banc court is the continuing viability of Lane v. United States, 529 F.2d 175 (4th Cir.1975). In Lane, this court flatly rejected the argument that a discretionary function exception should be read into the SIAA. After Lane, however, two cases from this circuit arguably applied some form of a discretionary function exception to cases arising under the SIAA. See Tiffany v. United States, 931 F.2d 271, 276-77 (4th Cir.1991); Faust v. South Carolina State Highway Dep't, 721 F.2d 934, 939 (4th Cir.1983).

Because we are sitting en banc, there is no doubt that we have the power to overrule Lane should we conclude it was wrongly decided. See, e.g., United States v. Lancaster, 96 F.3d 734, 742 n. 7 (4th Cir.1996) (en banc). The panel opinions in this case, however, raised the question of whether a panel of this court may likewise overrule a decision issued by another panel. The question of the binding effect of a panel opinion on subsequent panels is of utmost importance to the operation of this court and the development of the law in this circuit. Accordingly, before considering the merits of the discretionary function question, we first address this important procedural issue.¹

A number of cases from this court have stated the basic principle that one panel cannot overrule a decision issued by another panel. This statement is typically made in the course of a party's request that a panel opinion be overruled by another panel. See, e.g., United States v. Prince-Oyibo, 320 F.3d 494, 497-98 (4th Cir.), cert. denied, ___ U.S. ___, 124 S.Ct. 957, 157 L.Ed.2d 796 (2003); Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271 n. 2 (4th Cir.2002); United States v. Chong, 285 F.3d 343, 346 (4th Cir.2002); Potomac Elec. Power Co. v. Electric Motor & Supply, Inc., 262 F.3d 260, 264 n. 2 (4th Cir. 2001); Young v. City of Mount Ranier, 238 F.3d 567, 579 n. 9 (4th Cir.2001). Instances of conflicting panel opinions, however, are apparently fairly uncommon in this circuit, given the paucity of cases explaining how such conflicts should be resolved. Nonetheless, we have made it clear that, as to conflicts between panel opinions, application of the basic rule that one panel cannot overrule another requires a panel to follow the earlier of the conflicting opinions. See Booth v. Maryland, 327 F.3d 377, 383 (4th Cir.2003).

Most of the other circuits agree and follow the earlier of conflicting panel opinions. See, e.g., Hiller v. Oklahoma ex rel. Used Motor Vehicle & Parts Comm'n, 327 F.3d 1247, 1251 (10th Cir.2003) (explaining that when panel opinions are in conflict, "we are obligated to follow the earlier panel decision over the later one"); Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir.2003) ("When faced with an intra-circuit split we must apply the earliest case rule, meaning when circuit authority is in conflict, a panel should look to the line of authority containing the earliest case, because a decision of a prior panel cannot be overturned by a later panel." (internal quotation marks omitted)); Southwestern Bell Tel. Co. v. City of El Paso, 243 F.3d 936, 940 (5th Cir.2001) ("When two holdings or lines of precedent conflict, the earlier holding or line of precedent controls."); Kovacevich v. Kent State Univ., 224 F.3d 806, 822 (6th Cir.2000) ("[W]e must defer to a prior case when two panel decisions conflict."); Ryan v. Johnson, 115 F.3d 193, 198 (3rd Cir.1997) ("Under Third Circuit Internal Operating Procedure 9.1, when two decisions of this court conflict, we are bound by the earlier decision."); Newell Cos. v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed.Cir.1988) ("This court has adopted the rule that prior decisions of a panel of the court are binding precedent on subsequent panels unless and until overturned in banc. Where there is direct conflict, the precedential decision is the first." (citations omitted)). The Eighth Circuit, however, follows a different approach — a panel "faced with conflicting precedents [is] free to choose which line of cases to follow." Graham v. Contract Transp., Inc., 220 F.3d 910, 914 (8th Cir.2000).

We believe the better practice is the one articulated by the panel majority and followed by most other circuits. When published panel opinions are in direct conflict on a given issue, the earliest opinion controls, unless the prior opinion has been overruled by an intervening opinion from this court sitting en banc or the Supreme Court. We recognize, of course, that application of this rule does...