GARY THACKER, VENIDA L. THACKER, Plaintiffs-Appellants,
TENNESSEE VALLEY AUTHORITY, Defendant-Appellee.
from the United States District Court for the Northern
District of Alabama D.C. Docket No. 5:15-cv-01232-AKK
ED CARNES, Chief Judge, and ROSENBAUM and DUBINA, Circuit
and Venida Thacker sued the Tennessee Valley Authority
("TVA") for its alleged negligence involving a
tragic accident on the Tennessee River. On July 30, 2013,
while Gary Thacker and his friend Anthony Szozda were
participating in a local fishing tournament, TVA was
attempting to raise a downed power line that was partially
submerged in the river. The power line, which crossed the
river, had become lax earlier in the day when a pulling cable
failed during a conductor-replacement project. At the same
moment that TVA began lifting the conductor out of the water,
the fishing partners' boat passed through the area at a
high rate of speed, and the conductor struck both Thacker and
Szozda. As a result, according to the complaint, Thacker
suffered serious physical injuries, his wife suffered
loss-of-consortium damages, and Szozda was killed instantly.
district court dismissed the Thackers' complaint for lack
of subject-matter jurisdiction. We now must affirm.
Thackers assert that the district court erred in two ways:
(1) in the Thackers' view, the discretionary-function
exception to the government's sovereign-immunity waiver
in the TVA Act cannot apply to TVA's activities at issue
here; and (2) even if the exception applies, the challenged
conduct does not fall within it. We address the Thackers'
arguments in order.
review a district court's decision to grant a motion to
dismiss under Rule 12(b)(1), Fed. R. Civ. P., for lack of
subject-matter jurisdiction, we review its legal conclusions,
which are all that are at issue here, de novo.
McElmurray v. Consol. Gov't of Augusta-Richmond
Cty., 501 F.3d 1244, 1250 (11th Cir. 2007).
United States enjoys sovereign immunity from suit unless it
unequivocally waives it in statutory text. Lane v.
Pena, 518 U.S. 187, 192 (1996) (citation omitted). When
Congress waives sovereign immunity, we must strictly construe
that waiver, in terms of its scope, in favor of the United
States. See id. (citation omitted).
have recognized that the doctrine of sovereign immunity does
not entirely bar suit against TVA, Peoples Nat'l Bank
of Huntsville, Ala. v. Meredith, 812 F.2d 682, 684-85
(11th Cir. 1987) (citing 16 U.S.C. § 831c(b)), a
corporate agency of the United States that is expressly
authorized to engage in commercial, power-generating
activities, among other functions, 16 U.S.C. §§
831c(j), 831d(l), 831k; Tenn. Elec. Power Co. v.
Tenn. Valley Auth., 306 U.S. 118, 127 (1939) ("The
[TVA] Act erects a corporation, an instrumentality of the
United States, to develop by a series of dams on the
Tennessee River and its tributaries a system of navigation
and flood control and to sell the power created by the
dams." (footnote omitted)). Rather, the TVA Act
expressly provides that TVA "[m]ay sue and be sued in
its corporate name." 16 U.S.C. § 831c(b). Though
"sue-and-be-sued" waivers are liberally construed,
Loeffler v. Frank, 486 U.S. 589, 554 (1988) (quoting
Fed. Hous. Admin., Region No. 4 v. Burr, 309 U.S.
242, 245 (1940)), courts have interpreted this language to
mean that TVA is "liable to suit in tort, subject to
certain exceptions." United States v. Smith,
499 U.S. 160, 168-69 (1991) (citing Meredith, 812
F.2d at 684-85; Queen v. Tenn. Valley Auth., 689
F.2d 80, 85 (6th Cir. 1982), cert. denied, 460 U.S.
relevant here, we have held that TVA cannot be subject to
liability when engaged in governmental functions that are
discretionary in nature. Meredith, 812 F.2d at 685.
And we have specifically applied the discretionary-function
exception in cases arising out of TVA's commercial,
power-generating activities. See, e.g.,
Johns v. Pettibone Corp., 843 F.2d 464, 466-67 (11th
Cir. 1988) (negligence suit arising out of electrocution
death caused by a TVA power transmission line).
do so here as well because TVA's challenged actions
occurred in the context of its performance of a governmental
function. Under the TVA Act, TVA has the "power to
acquire real estate for the construction of . . .
transmission lines, power houses, and other structures . . .,
and in the event that the owner or owners of such property
shall fail and refuse to sell to [TVA] at a price deemed fair
and reasonable . . ., then [TVA] may . . . exercise the
right of eminent domain . . . ." 16 U.S.C. §
831c(i) (emphasis added); see also id. at §
831c(h) (TVA "[s]hall have power in the name of the
United States of America to exercise the right of
eminent domain . . . .") (emphasis added).
power of eminent domain that TVA may exercise when it
constructs power-transmission lines, of course, belongs
solely to the United States, not to commercial entities.
Since TVA can exercise that power when it constructs
power-transmission lines, we conclude that it acts as an
agency of the United States when constructing
power-transmission lines. Cf. Lynn v. United States,
110 F.2d 586, 590 (5th Cir. 1940) ("In the erection of
dams [TVA] is only an agency of the United States.")
(citing 16 U.S.C. § 831c(h), (i), (k)). Because the
construction of power lines is a governmental activity, TVA