MEMORANDUM OPINION AND ORDER
Plaintiff, North Alabama Electric Cooperative, commenced this action against defendant, Tennessee Valley Authority, alleging breach of contract and promissory fraud.
I. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
“In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Chapman v. AI Transport,
[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rulеs of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.
Chapman,
II. BACKGROUND
A. The Parties
Defendant, Tennessee Valley Authority (“TVA”), is a corporate agency and instrumentality of the United States. See 16 U.S.C. §§ 831-831ee. TVA maintains and operates one of the nation’s largest electrical power systems as part of its statutory mission for the development of the resources and economy of the Tennessee Valley region.
The plaintiff, North Alabama Electrical Cooperative (“NAEC”), is one of the regional power distributors associated with TVA.
B. The Department of Energy Grant
In February of 2009, shortly after the advent of the Obama Administration, Congress enacted the American Recovery and Reinvestment Act, Pub. L. No. 111-5, 123 Stat. 115 (Feb. 17, 2009). Pursuant to that act, the Department of Energy (“DOE”) announced the “Smart Grid Investment Grant” program (“SGIG”). Through that program, DOE offered to match the cost, up to $200 million, of projects designed to implement “smart” electric grids.
1. NAEC and SGIG
Prior to the announcement of the SGIG, NAEC had been using human meter readers to physically inspect the meter at each power endpoint.
2. TVA and SGIG
Roughly one year before the announcement of the SGIG program, the TVA board of directors approved a goal of reducing energy usage by 1,400 megawatts over a four-year period.
TVA saw the SGIG as a potential source of funding for reaching its goal of reducing power usage and running a more efficient power distribution system.
C. NAEC is Convinced to Join the Alliance
1. The TVPPA Alliance application
As the summer of 2009 wore on, the Alliance began to take shape. The Alliance filed its letter of intent to apply for a SGIG grant on July 16, 2009.
In creating its individual application, NAEC had been focusing on smart grid technology that would cost roughly $3 million to implement.
2. The July 27, 2009 conference call
With less than two weeks remaining before the SGIG application deadlinе, TVA made a final pitch to convince NAEC to join the Alliance, by means of a conference call conducted on July 27, 2009. Four TVA employees participated in the call: Robbie Jones, Darrel Smith, Mike Ingram, and Karlton Fredebeil.
Ingram told Purdy that TVA had an assurance from Washington that, so long as the TVPPA application was timely submitted, it would receive grant money.
Mike [Ingram] turns around and he says, [“L]ook, the $3 million, TVA will make good to you whether we win or lose.[”] That was a shocking statement. And I recall saying, [“]Mike, let me make sure I understand you. You are telling me whether or not our application wins the' award, is granted the money or not, that you are going to give me the $3 million I was originally asking for regardless of the outcome[?”] And Mike Ingram verifies and confirms that’s what he said.57
Upon hearing that promise, Purdy decided that NAEC would join the Alliance.
Purdy testified that the thought that Ingram might not have the authority to make an unconditional promise to pay NAEC $3 million crossed his mind “for a brief moment.”
3. The submission and denial of the Alliance application
The TVPPA Alliance timely submitted its SGIG proposal to DOE.
III. DISCUSSION
A. Breach of Contract
“[CJontraets to which TVA is an original party are governed by federal law.” Stock Equipment Co. v. TVA,
Under the doctrine established in Federal Crop Insurance Corp. v. Merrill,
“A government agent’s actual authority may be implied if contracting authority is an integral part of his assigned duties.” Id. (citing H. Landau & Co. v. United States,
[A] person with no actual authority may not gain actual authority through the court-made rule of implied actual authority. Specifically, the court may not substitute itself unconditionally for the executive in granting authority to an unauthorized person. The most the court can do is interpret the limited authority of an authorized person in a broader manner than ordinarily would be the сase. As a predicate to a finding of implied actual authority, there must be, at the least, some limited, related authority upon which the court can “administer” the law so as not to ignore the policies and decisions of those persons charged with managing government pro*1300 grams. The court believes that Landau and the theory of implied actual authority is of limited application, and was not intended to repeal the long established rule that, when dealing with the government, only government agents with actual authority can make a contract, express or implied.
Id. at 27 (brаcketed alteration supplied, citations omitted). Furthermore, when “an agency adopts internal procedures that preclude the employee from exercising such authority, it is totally inconsistent with the agency’s actions to imply that the agency delegated or granted actual contracting authority. Hence, in such cases, the doctrine of implied actual authority should not apply.” Doe v. United States,
In Strickland, a marine mechanic sued the government to recover expenses he incurred in repairing a naval vessel. The employeе alleged to have implied contracting authority had the duty of inspecting vessels to determine whether repairs were necessary. Strickland,
Plaintiff argues that contracting authority was integral to Ingram’s duties becausе, as the person in charge of the Alliance grant application, he was responsible for reaching agreements with distributors to join the organization. Plaintiff argues that, “if Ingram had the authority ... to commit TVA to an award of matching funds if a DOE grant were awarded, he would ... have the authority to make an unconditional commitment” to pay NAEC $3 million.
Plaintiffs argument that some type of “contracting” authority was central to Ingram’s duties, although logically appealing, does not satisfy the requirements of implied actual authority, as stated in cases such as Strickland and Doe. Ingram’s role is somewhat analogous to that of the government agent in Strickland, in that he had the power to recommend expenditures to his superiors, but it was those superiors who actually had the authority to commit government funds. The significant distinction between Ingram’s duties and those at issue in Strickland is that Ingram did not simply report estimates to his superiors; rather, he was engaged in negotiation with the distributors.
Moreover, when the time came to put the proposed agreements between TVA and the power distributors in writing, it was Breeden, and not Ingram, who signed the letter.
B. Promissory Fraud
1. Immunity from suit
Although TVA generally is subject to suit, “courts have held that TVA cannot be subject to liability when engaged in certain governmental functions.” Peoples National Bank of Huntsville, Alabama v. Meredith,
The Peoples Bank case cited above arose out of contamination in the Wheeler National Wildlife Reservoir in or near Triana, Alabama. Id. at 683. Congress appropriated $1.5 million for TVA to address the pollution, but provided no further instructions as to how TVA was to use the funds. Id. TVA made loans to fishermen whose livelihoods were affected by the pollution. Id. at 684. Litigation ensued, based on allegations that TVA officials had promised the fishеrmen that the “loans” would be shams: i.e., that the fishermen would be given money with no obligation to repay. Id. at 683-84. The Eleventh Circuit held that the loan program was a discretionary function, and that TVA was immune from the fraud suit. Id. at 685. The court reached that conclusion because the Congressional appropriation did not involve “any directive as to program development.” Id.
Here, the function of organizing an Alliance to bid on DOE grant funds is arguably more discretionary than the aid program addressed in Peoples Bank. The establishment of the SGIG program was not a Congressional dirеctive to TVA. In fact, TVA as an entity was not eligible to receive grant monies. The decision to create an Alliance of distributors to pursue funding was TVA’s policy decision to reduce power usage and increase efficiency. In contrast, in Peoples Bank TVA was obligated to do something with the $1.5 million to help the fishermen. Here, TVA was not obligated to anything with regard to the SGIG grant program. Thus, any action undertaken by TVA was discretionary, and TVA is immune from suit.
Plaintiff has offered no argument in response to defendant’s immunity argument, focusing solely on the merits of its fraud claim. Although immunity alone is sufficient to dismiss the claim, summary judgment is аlso warranted on the merits of the claim.
Plaintiffs claim is one of promissory fraud: ie., “one based upon a promise to act or not to act in the future.” Southland Bank v. A & A Drywall Supply Co., Inc., 21 So.3d 1196, 1211 (Ala.2009) (internal quotation and citation omitted). There are six elements to a promissory fraud claim: (1) a false representation; (2) of a material existing fact; (3) reasonably relied on by plaintiff; (4) who suffered damages as a proximate consequence of the misrepresentation; (5) with proof that, at the time of the misrepresentation, the defendant had the present intention not to perform the future act requirеd; and (6) proof that the defendant had the intent to deceive. See id. Defendant argues that plaintiff has failed to satisfy the final four elements of a promissory fraud claim. The court agrees that plaintiff has failed to demonstrate an intent to deceive, and will address that element only.
A plaintiff cannot meet its burden of showing intent to deceive merely on the basis that the promise was not kept. Wright v. AmSouth Bancorporation,
In the present case, plaintiff has failed to produce evidence to support the intent to deceive element. Plaintiff argues that defendant’s denials that Ingram made the promise, and that he had authority to make such a promise, somehow constitute circumstantial evidence that Ingram intended to deceive Purdy. Plaintiff makes the speculativе argument that Ingram must have intended to deceive Purdy, because Ingram would have known that he did not have the authority to follow through on the promise. However, plaintiffs arguments suffer from flaws both logical and evidentiary.
First, the fact that Ingram lacked authority to make the promise does not preclude the possibility that he meant it sincerely. It is certainly within the realm of possibility that Ingram believed he had more authority than he actually did, or that he chose his words poorly. Either of those possibilities could result in a promise beyond the scope оf his authority; neither implies an intent to deceive the listener. Of course, at the summary judgment stage, the court cannot speculate as to non-deceptive explanations for Ingram’s conduct; it must construe the evidence in the light most favorable to plaintiff. And there arises the second flaw with plaintiffs argument; there is no evidence.
Plaintiff cites Byrd v. Lamar,
Those facts stand in stark contrast to the case at bar, in which the “evidence” of intent to deceive is plaintiffs flawed argument that if Ingram lacked authority, he must have known that he could not follow through on the promise. Plaintiff has failed to adduce any evidence that Ingram intended to deceive Purdy contemporaneously with his promise that TVA would pay NAEC $3 million even if the grant application was denied. Accordingly, summary judgment on the promissory fraud claim is аppropriate.
IV. CONCLUSION AND ORDERS
For the reasons stated herein, defendant’s motion for summary judgment is GRANTED, and all of plaintiffs claims are DISMISSED with prejudice. Plaintiffs motion to strike is DENIED as moot. Costs are taxed to plaintiff. The clerk is directed to close this file.
Notes
. Doc. no. 1 (Complaint).
. Doc. no. 21.
. Doc. no. 23.
. Rule 56 was amended, effective December 1, 2010, in conjunction with a general overhaul of the Federal Rules of Civil Procedure. The Advisory Committee was careful to note, however, that the changes “will not affect continuing development of the decisional law construing and applying these phrases.” Adv. Cоmm. Notes to Fed.R.Civ.P. 56 (2010 Amends.). Consequently, cases interpreting the previous version of Rule 56 are equally applicable to the revised version.
. Doc. no. 22 (Brief in Support of Summary Judgment), Defendant’s Statement of Undisputed Facts ¶ 2. Where factual assertions have not been disputed, the court will cite to the statements of those facts contained in the parties’ briefs.
. See doc. no. 24 (Brief in Opposition to Summary Judgment), Plaintiff's Statement of Undisputed Facts ¶ 2.
. See id.
. Id. ¶ 28.
. Doc. no. 22-11 (Deposition of Bruce Purdy), at 60-61.
. Defendant's Statement of Undisputed Facts ¶ 4.
. Deposition of Bruce Purdy, at 18.
. Doc. no. 22-2 (Deposition of William Selby), at 19.
. Id. at 21-22.
. See Plaintiff's Statement of Undisputed Facts ¶ 76.
. Defendant's Statement of Undisputed Facts ¶ 12.
. Id. ¶ 13.
. See Deposition of William Selby, at 127-28 (discussing the features of in-home displays).
. Id. at 47.
. Id.
. Id. at 54-57.
. Deposition of Bruce Purdy, at 102-03; Deposition of William Selby, at 52.
. Deposition of Bruce Purdy, at 102 ("It seems like it fits our territory to a tee .... ”); id. at 170.
. Plaintiff's Statement of Undisputed Facts ¶ 12.
. Defendant's Statement of Undisputed Facts ¶ 14.
. Id. ¶ 6.
. Id. "Demand response” refers to the ability of a power company to tailor its output to the present needs of its customers.
. Doc. no. 22-4 (Declaration of Kenneth Breeden) ¶¶ 2, 4; id. at Ex. 1 (Request for Board Approval).
. Id. at Ex. 3 (Delegation of Authority Memorandum).
. See id. ¶ 7 ("Pursuant to my delegated authority and to help achieve the goal of a 1,400 megawatt reduction over four-years, [sic ] I decided to work with TVA distributors and others to apply for grant funding made available by the American Recovery and Reinvestment Act. ...”).
. Plaintiff's Statement of Undisputed Facts ¶ 4.
. Id. ¶ 8.
. Id. ¶ 22.
. Declaration of Kenneth Breeden V 8. Breeden also stated that Ingram had no cоntracting authority. Id. Plaintiff moved to strike the portion of the declaration in which Breeden stated that Ingram did not have contracting authority, on the ground that it is a legal conclusion, not a fact. Doc. no. 23. However, even disregarding that statement, the court finds that Ingram lacked contracting authority. Thus, the motion to strike is due to be denied as moot.
Plaintiff points to Ingram's testimony that, at a later time, he was "in the process of putting together proposals or rather contracts with the individual distributors” participating in a TVA grant program as evidence of Ingram’s implied authority to contract. Doc. no. 22-7 (Deposition of Michael Ingram), at 172. However, "putting together” a contract for one project does not necessarily equate to the authority to consummate a contract for another.
. Doc. no. 22-5 (Deposition of Kenneth Breeden), at 52-53.
. Id.
. Plaintiff's Statement of Undisputed Facts ¶ 29.
. Id. ¶ 30.
. Id. ¶ 34.
. Deposition of Michael Ingram, at 65-67.
. Id. at 78.
. Id. at 87.
. Id. at 87-88 ("I gave them my opinion that my understanding was that that would jeopardize both applications, their separate individual application and ours.”).
. See id. at 67.
. Cf. Deposition of Bruce Purdy, at 145-46 (testifying that he explained to TVA employees that he had not changed his mind on the decision to join the application).
. Id. at 102, 170.
. See Defendant’s Statement of Undisputed Facts ¶ 26.
. See Deposition of Bruce Purdy, at 109-11.
. Purdy testified that NAEC pursued the more complex system because it was what TVA wanted.
Q: You said the thing you needed, North Alabama needed[,] was give or take $3 million?
A: Correct.
Q: All the rest of it that has been called bells and whistles, was really to ... satisfy TVA's interest [ — ] that’s why you were being a team player?
A: Sure.
Q: And what was the ... final price tag of your project that was submitted to DOE?
A: It was 12 million....
Q: Only 3 million of that ... was your bread and butter, what you were really after?
A: Correct.
Q: The [other] 9 million was serving somebody else’s purposes and as an offshoot yours as a team player?
A: Correct, correct. Deposition of Bruce Purdy, at 109-11 (bracketed alterations supplied).
. See id.
. See id. at 113. Purdy apparently believed that TVA would actually pay the NAEC share as well. Id. at 122 ("Q: So if I’m understanding you correctly[,] for the $12 million project that you sent in with the TVPPA grant application, you assumed ... that it was really going to be 6 and 6: 6 DOE and 6 TVA? A: Yes.”) (bracketed alteration supplied).
. Defendant’s Statement of Undisputed Facts ¶ 27.
. Id.
. Plaintiff’s Statement of Undisputed Facts ¶ 49.
. Deposition of Michael Ingram, at 111-12.
. Id.
. Deposition of Bruce Purdy, at 149.
. Id. at 149-50 (bracketed alterations supplied).
. Id. at 150-51.
. Plaintiff's Statement of Undisputed Facts ¶ 51.
. Deposition of Brucy Purdy, at 161.
. Id. at 162 (bracketed alteration supplied).
. Id. at 162, 166 (bracketed alteration supplied).
. See Defendant’s Statement of Undisputed Facts ¶ 41.
. Declaration of Kenneth Breeden, at Ex. 4 (Funding Letter).
. Id. at 1-2.
. Id. at 2 (bracketed alteration supplied).
. Plaintiff's Statement of Undisputed Facts ¶ 60.
. Id. mi-12,.
. In Bonner v. City of Prichard,
. Declaration of Kenneth Breeden ¶ 8.
. Doc. no. 24, at 26.
. See, e.g., Deposition of Michael Ingram, at 87-88 (testifying about his negotiation with the Nashville distributor).
. Declaration of Kenneth Breeden, at Ex. 3 (Delegation of Authority Memorandum).
. Id. at Ex. 4 (Funding Letter).
. Funding Letter, at 2.