Thacker v. Tennessee Valley Authority [SCOTUSbrief]
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Thacker v. Tennessee Valley Authority [SCOTUSbrief]


Thacker vs. Tennessee Valley Authority is
a case about a fisherman who got hurt out on the water. He blames the Tennessee
Valley Authority which has supervision over the waterway for causing his
accident. The Tennessee Valley Authority was replacing some conductor power lines
that stretch over and across the river. One of those lines fell into the water.
That obviously creates a hazard for boaters. The TVA knew that. They contact
the Coast Guard, which is their emergency protocol.
The TVA also has a couple of patrol boats that come in the area. Thacker and
Szozda come in at about sixty miles an hour,
hit this conductor line that’s now just been lifted above the water line. The
line strikes the console, whips up, takes off Thacker’s hat and sunglasses, and
spins him with a torque the he alleges caused a spinal injury. The line nearly
decapitates Szozda, kills him instantly from blunt-force trauma to the neck. The
TVA Act says broadly that the TVA is an entity that can sue and be sued. Thacker
wants to engage that interpretation. Be sued. It means be sued. The TVA says no, in
fact that we have discretionary function immunity against lawsuit liability and
that’s where we get into the issues that lead us to the United States Supreme
Court. Discretionary function immunity was a
big exception built into the statute of the Federal Tort Claims Act in 1946.
Discretionary function immunity says more or less that the government has to
be able to have the latitude to be able to make a choice between different
viable options. So, when government makes policy, someone is not allowed to bring a
private lawsuit and say I don’t like your decision. I disagree with your
decision. The TVA is excluded from the FTCA.
However, discretionary function immunity was read into the earlier 1933
sue-and-be-sued language, not just for the TVA but for all kinds of entities
that were created during the New Deal. So Thacker’s best argument in this case
is to say essentially that the text of the statute controls and that is that
the 1933 TVA act says simply that this creature can sue and be sued doesn’t
qualify that in any way. And then you come to the FTCA in 1946 and that
statute on its text says the TVA is excluded from this statute. So Thacker
says this is a straight-up simple question of statutory interpretation. The
broad immunity of discretionary function under the FTCA was never given to
entities like the TVA and so I should be allowed to go forward with my lawsuit.
Advocates on Thacker’s side would say that the use of discretionary function
immunity insulates the TVA from liability for responsibility for its
decisions. I mean Thacker says look if something as
mundane if something as ordinary on the ground nuts and bolts as how do we get
this wire out of the water and back into the air if that can be discretionary
policymaking at the highest level, how do we hold an entity like the TVA
accountability? Now the TVA says no no no. We have all kinds of accountability.
It just happens not to be the kind you want. You want civil litigation to have
the courts second-guessing the decisions we make, looking over our shoulders in
those decisions and that’s so burdensome to what we do for the
people that you’re gonna interfere with the functioning of government in an
excessive and inappropriate way. The Tennessee Valley Authority is arguing in
essence that it needs a broad range of discretionary immunity in order to do
what it does. Although it is excluded from the Federal Tort Claims Act of 1946,
the Federal Tort Claims Act nonetheless describes what Congress wants that
discretionary function and immunity to look like today. you

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