USCA11 Case: 25-10547 Document: 41-2 Date Filed: 10/15/2025 Page: 1 of 6

FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 25-10547 ____________________

SCHRADE JONES, CARTER GILLIAM, Plaintiffs-Appellants, versus

UNITED STATES OF AMERICA, TENNESSEE VALLEY AUTHORITY, Defendants-Appellees. ____________________ Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 5:22-cv-00620-LCB ____________________

Before WILLIAM PRYOR, Chief Judge, and JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, BRASHER, ABUDU, and KIDD, Circuit Judges. USCA11 Case: 25-10547 Document: 41-2 Date Filed: 10/15/2025 Page: 2 of 6

2 Order of the Court 25-10547

No Judge in regular active service on the Court having re- quested that the Court be polled on granting initial hearing en banc, the Petition for Initial Hearing En Banc is DENIED. See FED. R. APP. P. 40. USCA11 Case: 25-10547 Document: 41-2 Date Filed: 10/15/2025 Page: 3 of 6

25-10547 WILLIAM PRYOR, C.J., Respecting the Denial 1

WILLIAM PRYOR, Chief Judge, respecting the denial of initial hear- ing en banc: The Suits in Admiralty Act expressly permits suits “against the United States or a federally-owned corporation” where “a civil action in admiralty could be maintained” if “a private person or property were involved.” 46 U.S.C. § 30903(a). Forty-one years ago, we created a judicial exception to this waiver of sovereign im- munity by “incorporating” into the Admiralty Act “the discretion- ary function exemption” of the Federal Tort Claims Act. See Wil- liams v. United States, 747 F.2d 700, 700 (11th Cir. 1984), aff’g and adopting, Williams By and Through Sharpley v. United States, 581 F. Supp. 847, 852 (S.D. Ga. 1983). Ever since, we have maintained that the Admiralty Act does not waive sovereign immunity for “any claim based upon the exercise or performance or the failure to ex- ercise or perform a discretionary function or duty on the part of a federal agency or an employee of the United States.” Mid-South Holding Co. v. United States, 225 F.3d 1201, 1204–05 (11th Cir. 2000) (alterations adopted) (quoting 28 U.S.C. § 2680(a)). The plaintiffs in this appeal—who sued the United States and the Tennessee Valley Authority for injuries they suffered when their fishing boat struck an unmarked duck blind in federally controlled waters—now seek initial hearing en banc so that we can overrule our precedents. Williams was wrong the day we decided it. Nothing in the text of the Admiralty Act even remotely suggests that the waiver of sovereign immunity effectuated by section 30903(a) is subject to a discretionary function exception. And we have no business USCA11 Case: 25-10547 Document: 41-2 Date Filed: 10/15/2025 Page: 4 of 6

2 WILLIAM PRYOR, C.J., Respecting the Denial 25-10547

“rewrit[ing] the statute” to supply exceptions that Congress did not provide. United States v. Hano, 922 F.3d 1272, 1284 (11th Cir. 2019) (citation omitted); see also Bostock v. Clayton County, 140 S. Ct. 1731, 1747 (2020) (“[W]hen Congress chooses not to include any excep- tions to a broad rule, courts apply the broad rule.”). Indeed, Con- gress expressly stated that “[t]he provisions of [the Tort Claims Act] shall not apply” to “[a]ny claim for which a remedy is provided by” the Admiralty Act. 28 U.S.C. § 2680(d) (referencing remedies “pro- vided by chapter 309 or 311 of title 46 relating to claims or suits in admiralty against the United States”). Williams did precisely what Congress told us not to do. Williams reflects a fundamental misunderstanding of our constitutional structure. According to Williams, “the doctrine of separation of powers” compels a judge-made exception to the Ad- miralty Act that “remove[s]” cases involving discretionary func- tions “from the jurisdiction of the courts” because judges should exercise “judicial restraint in the face of governmental administra- tive activity.” 581 F. Supp. at 852 (citations omitted). But judges engage in activism, not “restraint,” when they amend the statutes Congress writes. The only violation of the separation of powers in Williams was the violation we committed. “[T]he power to waive the federal government’s immunity is Congress’s prerogative, not ours.” Dep’t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 144 S. Ct. 457, 465–66 (2024). Our focus in con- struing immunity waivers must be “on statutory text rather than legislative history” or anything else. Id. at 466. Because the text of USCA11 Case: 25-10547 Document: 41-2 Date Filed: 10/15/2025 Page: 5 of 6

25-10547 WILLIAM PRYOR, C.J., Respecting the Denial 3

the Admiralty Act waives sovereign immunity whenever “a civil action in admiralty could be maintained” in cases involving private parties, 46 U.S.C. § 30903(a), without any mention of a discretion- ary function exception, we erred in creating an exception. To the extent our error in Williams was not obvious before, the Supreme Court removed any doubt in Thacker v. Tennessee Val- ley Authority, 139 S. Ct. 1435 (2019). There, the government in- voked the same line of reasoning that we invoked in Williams; it contended that the waiver of sovereign immunity in the Tennessee Valley Authority Act was subject to an implied exception for dis- cretionary functions as necessary to protect the separation of pow- ers. Id. at 1440–41. The Supreme Court unanimously disagreed. Thacker offered three reasons for its decision. First, “[n]othing in the statute . . . expressly recognize[d] immunity for discretionary functions.” Id. at 1440. The operative statute instead provided “that the TVA ‘may sue and be sued.’” Id. (alteration adopted) (quoting 16 U.S.C. § 831c(b)). Second, “Congress made clear” that the “exception for discretionary functions” in the Tort Claims Act did “not apply to any claim arising from the activities of the TVA.” Id. at 1440–41 (alterations adopted) (quoting 28 U.S.C. § 2680(l)). Because “Congress made a considered decision not to ap- ply” the Tort Claims Act “to the TVA,” the Court rejected the gov- ernment’s invitation “to negate that legislative choice” and “let the [discretionary function exception] in through the back door.” Id. at 1441. Third, the government was “wrong to think that waiving the TVA’s immunity from suits based on discretionary functions USCA11 Case: 25-10547 Document: 41-2 Date Filed: 10/15/2025 Page: 6 of 6

4 WILLIAM PRYOR, C.J., Respecting the Denial 25-10547

would offend the separation of powers.” Id. at 1442. When Con- gress waives sovereign immunity—“even when it goes so far as to waive . . . immunity for discretionary functions”—“[t]he right gov- ernmental actor (Congress) is making a decision within its bailiwick (to waive immunity) that authorizes an appropriate body (a court) to render a legal judgment.” Id. All three reasons in Thacker under- mine our reasoning in Williams. In an appropriate case, we should overrule Williams. This might be that case. But I agree with the decision not to reach the issue in an initial hearing en banc. “[I]nitial hearing en banc is not favored and ordinarily will not be ordered.” FED. R. APP. P. 40(g). Here, it is possible that a three-judge panel will obviate the need to consider overruling Williams. For example, a three-judge panel might conclude that Williams has been “undermined to the point of abrogation by the Supreme Court.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). Or the panel might resolve the appeal in a way that permits the plaintiffs to move forward despite Williams—by concluding that the Tennessee Valley Authority Act waives the Authority’s sovereign immunity independent of the Ad- miralty Act, or that the discretionary function exception does not apply on the facts. Alternatively, the panel might conclude that sov- ereign immunity does not apply but that the plaintiffs have failed to state a claim on which relief can be granted. If the panel holds that Williams controls, the many problems with Williams would provide strong grounds to grant rehearing en banc and overrule it. Until then, we should let the ordinary appellate process run its course.