Gary Thacker v. Tennessee Valley Authority
2017 U.S. App. LEXIS 15910
| 11th Cir. | 2017Background
- On July 30, 2013, TVA personnel raised a downed power conductor that had been lying partly submerged in the Tennessee River during a conductor-replacement project.
- At the same time, Gary Thacker and his fishing partner passed through the area; the conductor struck and injured Thacker and killed his partner. Thacker and his wife sued TVA for negligence and loss of consortium.
- The district court dismissed the complaint for lack of subject-matter jurisdiction, invoking TVA’s statutory immunity exceptions.
- The Eleventh Circuit reviewed de novo whether the discretionary-function exception to TVA’s waiver of sovereign immunity applied.
- The court treated TVA’s transmission-line activities as governmental (not purely commercial) because TVA may exercise eminent-domain and other sovereign powers when constructing power-transmission lines.
- Applying the two-step Berkovitz/Gaubert discretionary-function test, the court concluded TVA’s contested decisions involved judgment and policy considerations and were not governed by a specific mandatory regulation, so the exception barred suit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TVA’s operations here are subject to the discretionary-function exception | Thacker: TVA’s sue-and-be-sued status means the discretionary-function exception cannot apply to these activities | TVA: Construction and operation of transmission lines are governmental acts and decisions involve policy judgment protected by the exception | Held: TVA acted as a federal agency in constructing transmission lines; the exception can apply |
| Whether the specific challenged conduct was non-discretionary because a federal statute/regulation mandated particular actions | Thacker: TVA violated mandatory safety/regulatory requirements (citing 29 C.F.R. §1926 generally) | TVA: No specific federal statute/regulation compels the precise conduct alleged; decisions involved choices | Held: Plaintiffs failed to identify a specific mandatory directive; general citation to §1926 was insufficient; conduct was discretionary |
| Whether the conduct implicated judgment grounded in public policy (second Gaubert step) | Thacker: Actions were operational negligence, not policy-driven choices | TVA: Decisions about resource allocation, public safety measures, and warnings involve policy balancing | Held: Conduct involved policy considerations and thus falls within the discretionary-function exception |
| Whether dismissal for lack of subject-matter jurisdiction was appropriate | Thacker: Court erred in dismissing; claims are actionable | TVA: Sovereign-immunity waiver is limited; discretionary-function exception deprives court of jurisdiction | Held: Affirmed dismissal for lack of subject-matter jurisdiction |
Key Cases Cited
- McElmurray v. Consol. Gov’t of Augusta-Richmond Cty., 501 F.3d 1244 (11th Cir. 2007) (standard of review for Rule 12(b)(1) legal conclusions)
- Lane v. Pena, 518 U.S. 187 (U.S. 1996) (sovereign immunity waiver strictly construed)
- Peoples Nat’l Bank of Huntsville v. Meredith, 812 F.2d 682 (11th Cir. 1987) (TVA subject to suit except for certain governmental-function exceptions)
- United States v. Smith, 499 U.S. 160 (U.S. 1991) (limitations on sue-and-be-sued waivers)
- Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531 (U.S. 1988) (two-step discretionary-function test)
- United States v. Gaubert, 499 U.S. 315 (U.S. 1991) (discretionary-function exception protects policy-based governmental decisions)
- Swafford v. United States, 839 F.3d 1365 (11th Cir. 2016) (first step: identify exact conduct at issue)
- OSI, Inc. v. United States, 285 F.3d 947 (11th Cir. 2002) (discretionary-function exception does not require literal formal weighing of policy considerations)
- Bobo v. Tenn. Valley Auth., 855 F.3d 1294 (11th Cir. 2017) (applying FTCA discretionary-function analysis to TVA suits)