Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Thacker v. Tennessee Valley Authority

United States Supreme Court

April 29, 2019


          Argued January 14, 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, reversed and remanded.


          KAGAN JUSTICE.

         Federal law provides that the Tennessee Valley Authority (TVA), a Government-owned corporation supplying electric power to millions of Americans, "[m]ay sue and be sued in its corporate name." Tennessee Valley Authority Act of 1933 (TVA Act), 48 Stat. 60, 16 U.S.C. §831c(b). That provision serves to waive sovereign immunity from suit. Today, we consider how far the waiver goes. We reject the view, adopted below and pressed by the Government, that the TVA remains immune from all tort suits arising from its performance of so-called discretionary functions. The TVA's sue-and-be-sued clause is broad and contains no such limit. Under the clause-and consistent with our precedents construing similar ones-the TVA is subject to suits challenging any of its commercial activities. The law thus places the TVA in the same position as a private corporation supplying electricity. But the TVA might have immunity from suits contesting one of its governmental activities, of a kind not typically carried out by private parties. We remand this case for consideration of whether that limited immunity could apply here.


         Congress created the TVA-a "wholly owned public corporation of the United States"-in the throes of the Great Depression to promote the Tennessee Valley's economic development. TVA v. Hill, 437 U.S. 153, 157 (1978). In its early decades, the TVA focused on reforesting the countryside, improving farmers' fertilization practices, and building dams on the Tennessee River. See Brief for Respondent 3. The corporation also soon began constructing new power plants for the region. And over the years, as it completed other projects, the TVA devoted more and more of its efforts to producing and selling electric power. Today, the TVA operates around 60 power plants and provides electricity to more than nine million people in seven States. See id., at 3-4. The rates it charges (along with the bonds it issues) bring in over $10 billion in annual revenues, making federal appropriations unnecessary. See ibid.; GAO, FY 2018 Financial Report of the United States Government 53 (GAO-19-294R, 2019).

         As even that short description may suggest, the TVA is something of a hybrid, combining traditionally governmental functions with typically commercial ones. On the one hand, the TVA possesses powers and responsibilities reserved to sovereign actors. It may, for example, "exercise the right of eminent domain" and "condemn all property" necessary to carry out its goals. 16 U.S.C. §§831c(h), (i). Similarly, it may appoint employees as "law enforcement agents" with powers to investigate crimes and make arrests. §831c-3(a); see §831c-3(b)(2). But on the other hand, much of what the TVA does could be done-no, is done routinely-by non-governmental parties. Just as the TVA produces and sells electricity in its region, privately owned power companies (e.g., Con Edison, Dominion ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.