In McMellon v. U.S., the Fourth Circuit in an en banc opinion by Judge Traxler, joined by Chief Judge Wilkins and Judges Wilkinson, Williams, King, Shedd, and Duncan, held that there is an implied exception under the Suits in Admiralty to the waiver of sovereign immunity of the United States, under which may fall the claims of the plaintiffs for their personal injuries sustained when their jet skis went over the gates of the Robert C. Byrd Locks & Dam. Judge Wilkinson wrote a concurring opinion. Judge Niemeyer wrote an opinion concurring in part and dissenting in part. Judge Motz wrote an opinion concurring in part and dissenting in part, joined by Judge Michael. Judge Widener dissented outright, concluding that the Fourth Circuit got it right in 1975, expressing his general agreement with parts of the dissents of Judge Luttig and Judge Motz, and adding a quotation from the Eleventh Essay of Brutus, dated 1798. Judge Luttig wrote a dissenting opinion, contending that "[b]y every traditional measure of statutory interpretation, the waiver of the federal government’s immunity from suit in the SIAA must be read not to include an exception for discretionary functions." Judge Gregory wrote a separate dissenting opinion, adding to his general agreement with parts of Judge Luttig's dissent.
One interesting section in the majority opinion was this:
"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."
The answer is:
"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 require a panel to effectively ignore certain opinions duly decided by a properly constituted panel of the court. . . . While we recognize that a three-judge panel has the statutory and constitutional power to overrule the decision of another three-judge panel, we believe that, as a matter of prudence, a three-judge panel of this court should not exercise that power. Accordingly, we conclude that when there is an irreconcilable conflict between opinions issued by three-judge panels of this court, the first case to decide the issue is the one that must be followed, unless and until it is overruled by this court sitting en banc or by the Supreme Court."
In Judge Niemeyer's opinion, this analysis was a mistake in every way, as he writes: "this sua sponte advisory decision amounts to an unfortunate example of judicial hubris. . . . In their briefs, the parties have raised no question concerning our authority to overrule an earlier panel opinion. Nor have they raised the question of whether one panel of this court may overrule another. Even had they done so, our review would not require us to resolve the issue. Whether one panel of this court constituted under 28 U.S.C. § 46 can overrule another so constituted is irrelevant to this en banc review of the district court’s judgment. Accordingly, the majority acts as a volunteer in expositing on this subject, and its exposition is at best an advisory opinion on which the majority received no counsel or briefing from the parties. . . . Even were the majority to consider its decision to fall within some inherent rulemaking authority — a decision no less fraught with the question of judicial power — such a rule would be totally ill-advised and unnecessary. When we recognize that we render opinions on a
case-by-case basis, bringing to bear all applicable and available judicial decisions previously decided, and that we can always resolve intra-circuit splits by en banc rehearings, there simply can be no crisis requiring the issuance of such a rule."
According to this link from Howard Bashman, the rule in the Eighth Circuit is otherwise than what the Fourth Circuit concluded in this case. I wonder, since Howard has aired out the issue a bit himself in the context of this very case, whether his writings had some influence on the inclusion of this discussion in the en banc majority opinion.