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Thacker v. TVA

Supreme Court of the United States

January 14, 2019, Argued; April 29, 2019, Decided

No. 17-1201.


Justice Kagan delivered the opinion of the Court.

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  [*1439]  contains no such limit. Under the clause—and consistent with our precedents construing  [**673]  similar ones—the TVA is [***5]  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. Tennessee Valley Auth. v. Hill, 437 U. S. 153, 157, 98 S. Ct. 2279, 57 L. Ed. 2d 117 (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, [***6]  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 Energy) do so in theirs. As to those commonplace commercial functions, the emphasis in the oft-used label “public corporation” rests heavily on the latter word. Hill, 437 U. S., at 157, 98 S. Ct. 2279, 57 L. Ed. 2d 117.

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139 S. Ct. 1435 *; 203 L. Ed. 2d 668 **; 2019 U.S. LEXIS 3149 ***; 27 Fla. L. Weekly Fed. S 785; 2019 WL 1886028


Notice: The LEXIS pagination of this document is subject to change pending release of the final published version.

Subsequent History: On remand at, Remanded by Thacker v. TVA, 2019 U.S. App. LEXIS 21100 (11th Cir. Ala., July 17, 2019)


Thacker v. TVA, 868 F.3d 979, 2017 U.S. App. LEXIS 15910 (11th Cir. Ala., Aug. 22, 2017)

Disposition: 868 F. 3d 979, reversed and remanded.


immunity, discretionary function, sue-and-be-sued, suits, waive, discretionary, entity, challenging, electricity, sovereign immunity, governmental function, powers, grave

Torts, Federal Tort Claims Act, Exclusions From Liability, Discretionary Functions, Public Entity Liability, Immunities, Qualified Immunity, Governments, Legislation, Interpretation, Civil Procedure, US Supreme Court Review