Page:Gary Thacker v. Tennessee Valley Authority.pdf/9

Rh made a considered decision not to apply the FTCA to the TVA (even as Congress applied that legislation to some other public corporations, see 28 U. S. C. §2679(a)). See supra, at 3, 5. The Government effectively asks us to negate that legislative choice. Or otherwise put, it asks us to let the FTCA in through the back door, when Congress has locked the front one. We have once before rejected such a maneuver. In FDIC v. Meyer, a plaintiff brought a constitutional tort claim against a government agency with another broad sue-and-be-sued clause. The agency claimed immunity, stressing that the claim would have fallen outside the FTCA’s immunity waiver (which extends only to conventional torts). We dismissed the argument. “In essence,” we observed, the “FDIC asks us to engraft” a part of the FTCA “onto [the agency’s] sue-and-be-sued clause.” 510 U. S., at 480. But that would mean doing what Congress had not. See id., at 483. And so too here, if we were to bestow the FTCA’s discretionary function exception on the TVA through the conduit of Burr. Indeed, the Government’s proposal would make the TVA’s tort liability largely coextensive with that of all the agencies the FTCA governs. See Tr. of Oral Arg. 33–34. Far from acting to achieve such parity, Congress did everything possible to avoid it.

In any event, the Government is wrong to think that waiving the TVA’s immunity from suits based on discretionary functions would offend the separation of powers. As this Court explained in Burr, the scope of immunity that federal corporations enjoy is up to Congress. That body “has full power to endow [such an entity] with the government’s immunity from suit.” 309 U. S., at 244. And equally, it has full power to “waive [that] immunity” and “subject[ the entity] to the judicial process” to whatever extent it wishes. Ibid. When Congress takes the latter route—even when it goes so far as to waive the corporation’s immunity for discretionary functions—its action