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Thacker v. Tennessee Valley Authority

United States Court of Appeals, Eleventh Circuit

August 22, 2017

GARY THACKER, VENIDA L. THACKER, Plaintiffs-Appellants,
v.
TENNESSEE VALLEY AUTHORITY, Defendant-Appellee.

         Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 5:15-cv-01232-AKK

          Before ED CARNES, Chief Judge, and ROSENBAUM and DUBINA, Circuit Judges.

          PER CURIAM

         Gary 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.

         The district court dismissed the Thackers' complaint for lack of subject-matter jurisdiction. We now must affirm.

         The 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.

         I.

         When we 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).

         II.

         The 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).

         Yet we 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. 1082 (1983)).

         As 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).

         We must 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).

         The 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. ยง 831c(h), (i), (k)). Because the construction of power lines is a governmental activity, TVA ...


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