1

The Jones Act provides a cause of action against an

employer for the "death of any seaman." 46 U.S.C.App. § 688(a)

(1988). 

United States Court of Appeals,

Eleventh Circuit.

No. 95-6885.

George HUTCHINS, deceased, by Sharon HUTCHINS, personal

representative of the estate of George Hutchins, for the wrongful

death of George Hutchins, Plaintiff-Appellant,

v.

TENNESSEE VALLEY AUTHORITY, Defendant-Appellee.

Oct. 28, 1996.

Appeal from the United States District Court for the Northern

District of Alabama. (No. CV 94-U(B)-2823-NE), Sharon Lovelace

Blackburn, Judge.

Before BARKETT, Circuit Judge, and DYER and HILL, Senior Circuit

Judges.

PER CURIAM:

Sharon Hutchins appeals the district court's dismissal of her

wrongful death action against the Tennessee Valley Authority

("TVA") for the drowning death of her husband George Hutchins, who

worked as a deckhand at TVA's Widows Creek Fossil Plant on the

Tennessee River in Alabama. The district court held that

Hutchins's wrongful death action brought pursuant to the Jones Act,

46 U.S.C.App. § 688,1

 was barred by the exclusivity provision of

the Federal Employees Compensation Act ("FECA"), 5 U.S.C. § 8116(c)

(1994), which provides:

The liability of the United States or an instrumentality

thereof under this subchapter or any extension thereof with

respect to the injury or death of an employee is exclusive and

instead of all other liability of the United States or the

instrumentality to the employee, his legal representative,

spouse, dependents, next of kin, and any other person
otherwise entitled to recover damages from the United States

or the instrumentality because of the injury or death in a

direct judicial proceeding, in a civil action, or in

admiralty, or by an administrative or judicial proceeding

under a workmen's compensation statute or under a Federal tort

liability statute. However, this subsection does not apply to

a master or a member of a crew of a vessel.

Despite several Supreme Court and circuit court decisions which

have held that FECA is the exclusive remedy of federally employed

seamen, Hutchins contends that the plain language of FECA, as well

as its legislative history, indicate that Congress intended to

exempt seamen such as her husband from the Act's exclusivity

provision. She attempts to distinguish the two leading Supreme

Court cases, Johansen v. United States, 343 U.S. 427, 436, 72 S.Ct.

849, 96 L.Ed. 1051 (1952) (federally employed seamen precluded by

FECA from bringing suit against the United States under Public

Vessels Act of 1925), and Patterson v. United States, 359 U.S. 495,

496, 79 S.Ct. 936, 937, 3 L.Ed.2d 971 (1959) (United States was not

liable under Public Vessels Act because FECA provided exclusive

remedy of federally employed seamen), on the grounds that those two

suits were brought directly against the United States, which is

generally protected from suits due to the doctrine of sovereign

immunity. Hutchins argues that the rationale of Johansen and

Patterson is inapplicable in an action against a "sue-and-be-sued"

government corporation such as the TVA, for which immunity was

specifically waived in the TVA Act itself.

Even if the Supreme Court precedent was inconclusive on this

point, this panel is bound by the case law of this circuit which

holds that FECA is the exclusive remedy of federally employed

seamen. The former Fifth Circuit held in Posey v. Tennessee Valley
 2

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th

Cir.1981) (en banc), this court adopted as binding precedent all

decisions of the former Fifth Circuit rendered prior to October

1, 1981, unless modified or overruled by this court sitting en

banc. 

Authority, 93 F.2d 726 (5th Cir.1937), that the United States

Employees' Compensation Act, an early version of FECA, provided the

exclusive remedy available to an injured TVA employee.2

 The court

held in Johnson v. United States, 402 F.2d 778 (5th Cir.1968), that

seamen injured as federal employees of the Panama Canal Company

were limited to the benefits provided by FECA, and could not

maintain their suits brought in admiralty and under the Public

Vessels Act. In Flippo v. Tennessee Valley Authority, 486 F.2d 612

(5th Cir.1973), the court again held that FECA is the exclusive

remedy for an injured seaman employed by the TVA, even though it

"confess[ed] a certain bewilderment as to how the plain language of

the 1949 amendment to FECA cuts off substantial rights recognized

under the maritime law vis-a-vis a seaman employee and a

governmental agency having a very relaxed sovereign immunity."

Flippo, 486 F.2d 612 (footnote and citations omitted).

Counsel urges us to reverse on the basis of Judge Nelson's

dissent in Turner v. Tennessee Valley Authority, 859 F.2d 412 (6th

Cir.1988), which argues that the TVA ought to be held subject to

suit under a plain reading of the Jones Act. However, whether

there is merit to Hutchins's argument that the court reject its

prior case law and adopt the dissenting view in Turner is a matter

that only the en banc court can entertain. Our decision in this

case is controlled by prior case law which compels the conclusion

that Hutchins's recovery is limited to benefits provided under
FECA, and that the district court properly dismissed her Jones Act

wrongful death claim against the TVA.

AFFIRMED.