Page:Gary Thacker v. Tennessee Valley Authority.pdf/8

6 “broad”). Those words “in their usual and ordinary sense,” the Court noted, “embrace all civil process incident to the commencement or continuance of legal proceedings.” Burr, 309 U. S., at 245–246. And Congress generally “intend[s] the full consequences of what it sa[ys]”—even if “inconvenient, costly, and inefficient.” Id., at 249 (quotation modified). But not quite always, the Court continued. And when not—when Congress meant to use the words “sue and be sued” in a more “narrow sense”—a court should recognize “an implied restriction.” Id., at 245. In particular, Burr stated, a court should take that route if one of the following circumstances is “clearly shown”: either the “type[] of suit [at issue is] not consistent with the statutory or constitutional scheme” or the restriction is “necessary to avoid grave interference with the performance of a governmental function.” Ibid.

Although the courts below never considered Burr, the Government tries to use its framework to defend their decisions. See Brief for Respondent 17–40. According to the Government, we should establish a limit on the TVA’s sue-and-be-sued clause—like the one in the FTCA—for all suits challenging discretionary functions. That is for two reasons, tracking Burr’s statement of when to recognize an “implied exception” to a sue-and-be-sued clause. 309 U. S., at 245. First, the Government argues that allowing those suits would conflict with the “constitutional scheme”—more precisely, with “separation-of-powers principles”—by subjecting the TVA’s discretionary conduct to “judicial second-guessing.” Brief for Respondent 19, 21 (internal quotation marks omitted). Second, the Government maintains that permitting those suits would necessarily “interfere[] with important governmental functions.” Id., at 36; see id., at 39–40; Tr. of Oral Arg. 39–41. We disagree.

At the outset, we balk at using Burr to provide a government entity excluded from the FTCA with a replica of that statute’s discretionary function exception. Congress