Case No. 17-1201, 11th Cir.
Preview by Samuel E. Meredith, Senior Online Editor
In July 30, 2013, an accident at a facility managed by the Tennessee Valley Authority (“TVA”) caused a power line to fall into the Wheeler Reservoir on the Tennessee River. In response, the TVA enlisted the Coast Guard to patrol the area and prevent people from entering the affected area of the river. That same day, Gary Thacker and a companion were traveling down the river “at high speed.” Brief for the Respondent at 7, Thacker v. Tenn. Valley Auth., 17-1201 (U.S. filed Dec. 13, 2018). When Thacker’s vessel reached the affected area, the width of the river, along with “the speed of Thacker’s boat and the patrol patterns of the patrol boats,” made it so the Coast Guard was unable to reach Thacker before he made contact with the power line. The ensuing shock took the life of Thacker’s companion and severely injured Thacker.
Following the accident, Thacker and his wife sued the TVA. In their suit, the Thackers asserted that “the TVA had not used reasonable care in assembling and installing its power lines, in warning boaters of the hazard it had created, and in responding to the resulting emergency.” Brief for Petitioner at 3, Thacker v. Tenn. Valley Auth., 17-1201 (U.S. filed Nov. 13, 2018). In response, the TVA moved to dismiss the case on sovereign immunity grounds. The district court granted the motion and the Eleventh Circuit affirmed. The Eleventh Circuit based its decision on “the discretionary function exception” recognized in the Federal Tort Claims Act (“FTCA”). Brief of Respondent at 8, Thacker v. Tenn. Valley Auth., 17-1201 (U.S. filed Dec. 13, 2018). The issue before the Court is whether the Court of Appeals was right to apply the discretionary function standard.
The Thackers assert that “the FTCA [and, by extension, the discretionary function exception,] does not apply to the TVA.” Brief for Petitioner at 6, Thacker v. Tenn. Valley Auth., 17-1201 (U.S. filed Nov. 13, 2018). To support this conclusion, the Thackers point to the text of the FTCA. See 28 U.S.C. § 2680(l) (2018). The Thackers further claim that under Court precedent, non-FTCA agencies such as the TVA “are immune from suit in only a few circumstances.” Brief for Petitioner at 11, Thacker v. Tenn. Valley Auth., 17-1201 (U.S. filed Nov. 13, 2018).
In response, the TVA avers that although “the FTCA does not govern petitioners’ suit,” the TVA’s amenability to suit is “subject to implied limitations,” including one for “suit[s] based on claims arising out of the performance of discretionary functions.” Brief for the Respondent at 15–16, Thacker v. Tenn. Valley Auth., 17-1201 (U.S. filed Dec. 13, 2018). To support this view, the TVA cites United States v. Smith, in which the Court made note of a trend in other courts of attaching “certain exceptions” to the TVA’s general amenability to suit. 499 U.S. 160, 168–69 (1991). The TVA further claims that its preferred approach is more practical and will allow courts to avoid “second-guessing of executive policymaking decisions.” Brief for the Respondent at 37, Thacker v. Tenn. Valley Auth., 17-1201 (U.S. filed Dec. 13, 2018).