March 2, 2021

Volume XI, Number 61


March 01, 2021

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Supreme Court Rejects Sixth and Eleventh Circuit’s “Discretionary Function” Immunity for TVA

In Thacker v. Tennessee Valley Authority, the Supreme Court held that sovereign immunity does not necessarily shield TVA’s “discretionary functions” from liability.  Justice Kagan’s unanimous opinion reversed the Eleventh Circuit, which had sided with longstanding Sixth Circuit precedent treating many TVA functions as immune from suit.

Congress created the Tennessee Valley Authority, a government-owned corporation, to promote economic development during the Great Depression. TVA exercises both “traditionally governmental functions” (like making arrests and condemning property) and “commercial ones” (like producing and selling electricity).  The TVA Act explicitly allows it to “sue and be sued in its corporate name.”  But the Sixth and Eleventh Circuits—borrowing from the Federal Tort Claims Act—have long held that TVA is “exempt from liability” for discretionary actions when it exercises “wholly governmental functions.”

That is a problem, according to the Supreme Court, because the FTCA expressly excludes TVA from its scope. The TVA Act, meanwhile, contains no discretionary-function exception of its own. And separation-of-powers principles, Justice Kagan explained, don’t prevent Congress from allowing TVA to “sued or be sued.”

The Government …. asks us to let the FTCA in through the back door, when Congress has locked the front one.

So: when TVA raises a downed power line, across a river, protected by TVA police boats, during a fishing tournament, is it liable for negligence like a private power company? Or immune like a government agency? That is a vexing fact pattern for a law-school exam. Here, tragically, the question is not hypothetical: a collision on the water killed one fisherman and injured another.

We won’t learn the answer until a remand back to the Eleventh Circuit. Going forward, lower courts including the Sixth Circuit will determine whether TVA’s activities were “commercial”—and therefore not immune—or “governmental”—and therefore immune only if exposure to suit would clearly cause “grave interference” with a governmental function. “That,” the Court emphasized, “is a high bar.”

Pre-Thacker, the Sixth Circuit’s TVA jurisprudence tracked the FTCA.  But now the Sixth and Eleventh Circuits (which include the vast majority of TVA territory) will apply a newly-narrowed immunity to the TVA—and potentially many other government corporations that may “sued and be sued.” At least sometimes.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume IX, Number 123



About this Author

Larisa Vaysman, Squire Patton Boggs, appellate litigation

Larisa Vaysman’s practice focuses on general and appellate litigation. She has represented clients before the Sixth, Ninth and DC Circuits, as well as a range of state and federal courts. She has also represented petitioners and amici curiae before the US Supreme Court. Prior to joining Squire Sanders, Larisa clerked for The Honorable R. Guy Cole, Jr. of the United States Court of Appeals for the Sixth Circuit. While in law school, Larisa worked as a summer associate for a Cincinnati law firm.

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Benjamin Beaton Litigation Attorney Squire Patton Boggs Cincinnati, OH

Benjamin Beaton is co-chair of the Appellate & Supreme Court Practice. He handles complex appeals, regulatory disputes and law-intensive trial proceedings. Ben has authored more than a dozen briefs at the US Supreme Court, where he previously served as a law clerk. He has drafted dozens more in the federal courts of appeal and state supreme courts, and regularly confers with trial and in-house counsel regarding appellate and motions strategy. Chambers has noted the firm’s “well-resourced appellate team, with notable experience in disputes heard before the Sixth Circuit.” The...