Gary Thacker v. Tennessee Valley Authority

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Gary Thacker v. Tennessee Valley Authority  (2019) 
by the Supreme Court of the United States

Note: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.



No. 17–1201. Argued January 14, 2019—Decided April 29, 2019

The Tennessee Valley Authority (TVA), a Government-owned corporation, provides electric power to millions of Americans. In creating the TVA, Congress decided that the corporation could “sue and be sued in its corporate name,” 16 U. S. C. §831c(b), thus waiving at least some of the sovereign immunity from suit that it would have enjoyed as a Federal Government entity. Congress subsequently waived immunity from tort suits involving agencies across the Government in the Federal Tort Claims Act (FTCA), but it carved out an exception for claims based on a federal employee’s performance of a “discretionary function.” 28 U. S. C. §2680(a). Congress specifically excluded from the FTCA’s provisions—including the discretionary function exception—“[a]ny claim arising from the activities of the [TVA].” §2680(l).

In this case, TVA employees were raising a downed power line that was partially submerged in the Tennessee River when petitioner Gary Thacker drove his boat into the area at high speed. Thacker’s boat collided with the power line, seriously injuring him and killing his passenger. He sued for negligence. The TVA moved to dismiss, claiming sovereign immunity, and the District Court granted the motion. Affirming, the Eleventh Circuit used the same test it applies when evaluating whether the Government is immune from suit under the discretionary function exception to the FTCA, and it held that Thacker’s suit was foreclosed because the challenged actions were “a matter of choice.”


1. The waiver of immunity in the TVA’s sue-and-be-sued clause is not subject to a discretionary function exception of the kind in the FTCA. By the terms of the Tennessee Valley Authority Act of 1933, the TVA’s sue-and-be-sued clause contains no exception for suits based on discretionary functions. Nor does the FTCA’s discretionary function exception apply to the TVA. See 28 U. S. C. §2680(l). But this Court recognized in Federal Housing Administration v. Burr, 309 U. S. 242, that a sue-and-be-sued clause might be subject to an “implied restriction,” id., at 245. In particular, a court should recognize such a restriction if the type of suit at issue is “not consistent with the statutory or constitutional scheme” or the restriction is “necessary to avoid grave interference with the performance of a governmental function.” Ibid. The Government tries to use the framework of Burr to argue that this Court should imply an FTCA-like limit on the TVA’s sue-and-be-sued clause for all suits challenging discretionary functions because those suits would conflict with separation-of-powers principles and interfere with important governmental functions. At the outset, Congress made a considered decision not to apply the FTCA to the TVA, and the Government is effectively asking this Court to negate that legislative choice. In any event, the Government errs in arguing that waiving the TVA’s immunity from suits based on discretionary functions would offend the separation of powers. And the Government overreaches when it says that all suits based on the TVA’s discretionary conduct would interfere with governmental functions. The discretionary acts of hybrid entities like the TVA may be commercial in nature, and a suit challenging a commercial act will not interfere with governmental functions. Ibid. Pp. 4–10.

2. The courts below, which wrongly relied on the discretionary function exception, should have the first chance to address the issues this Court finds relevant in deciding whether this suit may go forward. To determine if the TVA has immunity, the court on remand must first decide whether the conduct alleged to be negligent is governmental or commercial in nature. If it is commercial, the TVA cannot invoke sovereign immunity. If it is governmental, the court might decide that an implied limitation on the clause bars the suit, but only if it finds that prohibiting the “type[] of suit [at issue] is necessary to avoid grave interference” with that function’s performance. Burr, 309 U. S., at 245. Pp. 10–11.

868 F. 3d 979, reserved and remanded.

Kagan, J., delivered the opinion for a unanimous Court.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).