Page:Gary Thacker v. Tennessee Valley Authority.pdf/6

4 Thacker sued for negligence, alleging that the TVA had failed to “exercise reasonable care” in “assembl[ing] and install[ing] power lines” and in “warning boaters” like him “of the hazards it created.” Id., at 31.

The TVA moved to dismiss the suit, claiming sovereign immunity. The District Court granted the motion. It reasoned that the TVA, no less than other government agencies, is entitled to immunity from any suit based on an employee’s exercise of discretionary functions. See 188 F. Supp. 3d 1243, 1245 (ND Ala. 2016). And it thought that the TVA’s actions surrounding the boating accident were discretionary because “they involve[d] some judgment and choice.” Ibid. The Court of Appeals for the Eleventh Circuit affirmed on the same ground. According to the circuit court, the TVA has immunity for discretionary functions even when they are part of the “TVA’s commercial, power-generating activities.” 868 F. 3d 979, 981 (2017). In deciding whether a suit implicates those functions, the court explained that it “use[s] the same test that applies when the government invokes the discretionary-function exception to the [FTCA].” Id., at 982. And that test, the court agreed, foreclosed Thacker’s suit because the challenged actions were “a matter of choice.” Ibid. (internal quotation marks omitted).

We granted certiorari to decide whether the waiver of sovereign immunity in TVA’s sue-and-be-sued clause is subject to a discretionary function exception, of the kind in the FTCA. 585 U. S. ___ (2018). We hold it is not.

Nothing in the statute establishing the TVA (again, the TVA Act for short) expressly recognizes immunity for discretionary functions. As noted above, that law provides simply that the TVA “[m]ay sue and be sued.” 16 U. S. C. §831c(b); see supra, at 3. Such a sue-and-be-sued clause serves to waive sovereign immunity otherwise belonging