THACKER V. TENNESSEE VALLEY AUTHORITY

Whether the Eleventh Circuit erred by using the Federal Torts Claims Act derived “discretionary-function exception,” rather than the "sue and be sued" test of immunity under Fed. Housing Admin. v. Burr, to immunize the Tennessee Valley Authority from the plaintiffs’ claims.

Petitioners filed suit against Respondent for personal injuries incurred when boating where Respondent was attempting to raise a downed power line that had fallen across the river. Under 16 U.S.C. § 831c(b), Respondent may “sue and be sued” in its own name and enjoys immunity only in certain circumstances laid out in Fed. Housing Admin. v. Burr, 309 U.S. 242 (1940). The District Court dismissed for lack of subject-matter jurisdiction holding Respondent immune from suit under the discretionary function rule. The Eleventh Circuit affirmed stating that Respondent’s action involved public-policy considerations and fell outside the "sue and be sued" clause of 16 U.S.C. § 831c(b). Therefore, using the same test the court applies under the FTCA, the Court agreed and affirmed the dismissal. Petitioners appeal to the Supreme Court to decide whether the Eleventh Circuit erred by using an FTCA-derived discretionary-function exception” rather than the principles in Burr to immunize Respondent from the plaintiffs’ claims. Petitioner argues that such an application of the FTCA discretionary-function exception does not apply to "sue and be sued" entities such as Respondent who are separate entities from the government. Petitioner further argues that the FTCA expressly excludes Respondent from its purview and Respondent is immune only in the circumstances discussed in Burr.