Page:Gary Thacker v. Tennessee Valley Authority.pdf/11

Rh not fall”). And twice the Court held that the liability of the Postal Service (another sue-and-be-sued agency) should be “similar[] to [that of] other self-sustaining commercial ventures.” Franchise Tax Bd. of Cal. v. Postal Service, 467 U. S. 512, 525 (1984); see Loeffler, 486 U. S., at 556. The point of those decisions, contra the Government, is that (barring special constitutional or statutory issues not present here) suits based on a public corporation’s commercial activity may proceed as they would against a private company; only suits challenging the entity’s governmental activity may run into an implied limit on its sue-and-be-sued clause.

Burr and its progeny thus require a far more refined analysis than the Government offers here. The reasons those decisions give to recognize a restriction on a sue-and-be-sued clause do not justify the wholesale incorporation of the discretionary function exception. As explained above, the “constitutional scheme” has nothing to say about lawsuits challenging a public corporation’s discretionary activity—except to leave their fate to Congress. Burr, 309 U. S., at 245; see supra, at 8. For its part, Congress has not said in enacting sue-and-be-sued clauses that it wants to prohibit all such suits—quite the contrary. And no concern for “governmental functions” can immunize discretionary activities that are commercial in kind. Burr, 309 U. S., at 245; see supra, at 8–9. When the TVA or similar body operates in the marketplace as private companies do, it is as liable as they are for choices and judgments. The possibility of immunity arises only when a suit challenges governmental activities—the kinds of functions private parties typically do not perform. And even then, an entity with a sue-and-be-sued clause may receive immunity only if it is “clearly shown” that prohibiting the “type[] of suit [at issue] is necessary to avoid grave interference” with a governmental function’s performance. Burr, 309 U. S., at 245. That is a high bar. But it is no