Is Transmission of Electricity a “Governmental Function?” Thacker v. Tennessee Valley Authority

[Elderberry]

Response by Richard J. Pierce, Jr. 5/10/2019

The Court concludes its unanimous opinion in Thacker v. Tennessee Valley Authority by remanding the case to the Eleventh Circuit with instructions to decide whether transmission of electricity is a governmental function or a commercial function.1 The Court views this as an easy task. It is not.

The case arose as a result of a boating accident. Plaintiffs were operating their pleasure boat at a high rate of speed on a section of a river that the Coast Guard had closed at the request of the Tennessee Valley Authority (“TVA”). The closure was motivated by the danger to navigation created by the TVA’s work on a transmission line across the river. Plaintiff’s boat collided with the partially submerged line, resulting in the death of one occupant and injury to another. The TVA had stationed two guard boats to warn recreational boats of the danger but neither of the guard boats could intercept the plaintiff’s boat prior to the collision because of the high rate of speed at which the plaintiff was operating his boat.

Plaintiff sued the TVA based on his claim that the TVA was negligent in providing inadequate training and supervision to the operators of the TVA guard boats. The district court granted the government’s motion to dismiss the complaint.2 The court held that it lacked jurisdiction to consider the complaint because the conduct at issue fell within the scope of the discretionary function exception to the Federal Tort Claims Act (“FTCA”).

When Congress enacted the FTCA in 1946 it waived the government’s sovereign immunity subject to an important exception. The discretionary function exception retains sovereign immunity for discretionary acts of the government that are based on policy considerations.3 Since there was no statute or rule that required the TVA to train and supervise its employees who operate guard boats in particular ways, the TVA’s decisions with respect to the scope and intensity of that training and supervision were discretionary. Since those decisions required the TVA to decide how to allocate its scarce resources, they were decisions based on policy considerations. The Eleventh Circuit applied longstanding circuit precedents and circuit interpretations of Supreme Court opinions as the basis to uphold the district court’s order granting the government’s motion to dismiss.4

The Supreme Court unanimously reversed the Eleventh Circuit. The Court held that Congress had waived sovereign immunity with respect to the TVA when it included a provision in the statute that authorized the TVA to “sue and be sued.”5 The Court also held, however, that the discretionary function exception does not apply to the TVA because Congress exempted the TVA from the FTCA and did not include the discretionary function exception in the statute that created the TVA and authorized it to “sue and be sued.”6

In prior opinions, the Court had described the discretionary function exception to the FTCA as an effort by Congress to further separation of powers values by anticipating and codifying the constitutionally-based limits that courts would apply to statutory waivers of sovereign immunity. Thus, for instance, in its 1984 opinion in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), the Court said:

The legislative materials of the 77th Congress illustrate most clearly Congress’ purpose in fashioning the discretionary function exception. A Government spokesman appearing before the House Committee on the Judiciary described the discretionary function exception as a “highly important exception:”

“[It is] designed to preclude application of the act to a claim based upon an alleged abuse of discretionary authority . . . . It is neither desirable nor intended that the . . . propriety of a discretionary administrative act should be tested through the medium of a damage suit for tort. The same holds true of other administrative action . . . , such as the expenditure of Federal funds, the execution of a Federal project, and the like.
. . . .”

It was believed that claims of the kind embraced by the discretionary function exception would have been exempted from the waiver of sovereign immunity by judicial construction; nevertheless, the specific exception was added to make clear that the Act was not to be extended into the realm of . . . discretionary administrative action.7

More: https://www.gwlr.org/is-transmission-of-electricity-a-governmental-function-thacker-v-tennessee-valley-authority/