Author Topic: When the federal government acts as a commercial enterprise, the courthouse doors open wider  (Read 640 times)

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SCOTUSblog by Gregory Sisk 4/29/2019

In Thacker v. Tennessee Valley Authority, the federal government asked for broad policy immunity to shield choices by the Tennessee Valley Authority about the safety measures the TVA employed when stringing a power line across a river. In today’s decision, the Supreme Court unanimously refused to infer limits on the statutory authorization for suit against the TVA and emphasized the rather ordinary commercial nature of the TVA’s activity. The court reversed the dismissal by the U.S. Court of Appeals for the 11th Circuit of a tort suit brought by a recreational fisherman who was injured (and his passenger killed) when his boat struck a fallen power line that TVA employees were pulling up from the water.

Highlighting the TVA’s activities in generating and transmitting electric power as one of the nation’s largest power utilities, the Supreme Court ruled that the simple and unqualified statute allowing this government corporation to sue and be sued should be read liberally when the corporation is engaged in commercial rather than governmental conduct. The court refused the government’s invitation to engraft onto the TVA statute a broad policy exception for discretionary functions.

Under the doctrine of federal sovereign immunity, no one can sue the United States without its express statutory permission. In 1946, in the Federal Tort Claims Act, the federal government enacted a limited waiver of its sovereign immunity, allowing people to sue the United States in federal court for torts committed by agents of the federal government. The FTCA contains an explicit exception from liability, codified in 28 U.S.C. § 2680(a,) when a government employee exercises or performs “a discretionary function or duty.”

By contrast, the TVA is governed by its own statutory waiver of sovereign immunity, 16 U.S.C. § 831c, under which the TVA “[m]ay sue and be sued in its own corporate name,” with any judgment paid from TVA assets rather than the federal treasury.