Thacker v. TVA (17-1201)
argument 17-1201Thacker v. TVA
Supreme Court of the United States
59 min
6 speakers
8 chapters
transcribed 4 days ago
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Transcript
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What is the statutory basis for the TVA’s “sue and be sued” authority?
We'll hear argument first this morning in case seventeen twelve oh one, Thacker versus the Tennessee
Valley Authority. Mr Rouse. Mr Chief Justice, and may it please the Court. Congress created the Tennessee Valley Authority as a corporation that could sue and be sued. The TVA Act states Except as otherwise specifically provided in this act, the corporation may sue and be sued in its corporate name. Nothing in the TVA Act specifically provides the exception that the TVA now urges. immunity for what it calls discretionary work.
I'm sorry. Are denouncing the existence of a um core government activity not being immunised. whether to place a dam or not.
No.
Well they're basically the same, which is how far does If you recognise some core government functions performed by the TVA. How far does that immunity go? Isn't that the question before us?
Th I I think so, but I in in this circumstance is the conduct at issue is raising a power line out of the water. replacing an electrical conductor, whatever might be said about deciding where to put a dam or how to to manage the flow of the Tennessee River and to change its course or anything like that, it's this conduct just does not implicate that.
Well I suppose it depends at what level of generality you describe the conduct. Perhaps you are right if you talk about a particular, you know, cable at a particular place, but if you decide if you d describe the i i what is at issue is uh regulating uh safety along the waterway, then maybe it starts to sound like like more of the uh uh exceptions that were talked about
in Burr. And that may, and wouldn't and I think those exceptions would certainly implicate the Federal Tort Claims Act and the discretionary m uh discretionary immunity there. But under Burr I think the the question begins with the presumption that that Congress has taken this entity, it has created it. It has not made it a new executive department, but it is said it can sue and be sued in its own name. It has cast it aside. It said it can fin for itself. We're allowing it to do its own work. We'll give it some powers. But we're gonna withhold others. And so there's got to be some deference to Congress that Congress took these steps. And to just say well it performs some functions, it's governmental, and you m start making that distinction is the exact error that we think that the lower courts made here.
How do you think
this is supposed to work? Uh If we just if the if the Court just applies burr. Uh how is w how is the court supposed to proceed uh in determining um whether there is immunity. Look at the pr make a case by case determination whether the particular claim in that case falls within the the two s uh categories set out in Burr. So is it consistent with the statutory and constitutional s scheme or more to the point does is it necessary to have immunity to avoid grave interference with the performance of a governmental function?
So un I think under the test that at least the second prong certainly looks at the specific conduct in issue and it says What proof do you have that Immunity here is needed. It must it must be clearly shown that it is necessary to prevent some grave interference with the performance of a governmental function. Not just it may be tougher, may be harder, or you may have to pay normal tort damages, but what grave interference is present here? But do you think this is th this is to be done on a case by case basis or a categorical basis? I think that under the second prong uh a case by case basis is gonna be the more usual result. But onto the first prong, you're looking at is this the type of suit? That is consistent or inconsistent with the statutory or constitutional scheme.
In this circumstance, there's no real argument. That this case is inconsistent with the statutory scheme. There's no doubt that Liability here will somehow mean that T V A can't do its other functions or anything like that. It's not
there is some I it's I I guess there is some argument on the other side. And I take it that there are are A main argument that registered in my mind was where Justice Sotomahar started out.
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Chapters
8 chapters
1
What is the statutory basis for the TVA’s “sue and be sued” authority?
0:00–9:19
2
How do the parties define the scope of the TVA’s discretionary‑function immunity?
9:19–19:53
3
What is the Burr test and how does it apply to the TVA case?
19:53–29:07
4
Which specific TVA activities (e.g., power‑line work, flood control) might fall outside immunity?
29:07–41:02
5
How does the exclusion of the TVA from the Federal Tort Claims Act affect its immunity?
41:02–54:14
6
What separation‑of‑powers arguments are raised about judicial review of TVA actions?
54:14–58:14
7
How do the Justices view the balance between governmental and commercial functions of the TVA?
58:14–59:23
8
What conclusions does the Court reach regarding the TVA’s liability and immunity?
59:23–59:43