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Gary Thacker, et ux. v. Tennessee Valley Authority

Paid petition · United States Court of Appeals for the Eleventh Circuit, No. 16-15105 · judgment August 22, 2017

Decided · April 29, 2019

Pre-decision estimate: 2% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Questions presented

Granted limited to question 1 presented by the petition. 1. This Court tests the immunity of governmental "sue and be sued" entities (like the Tennessee Valley Authority) under Fed. Housing Amin. v. Burr, 309 U.S. 242 (1940). The Court has declined to borrow rules from the Federal Tort Claims Act (FTCA) to narrow that immunity. FDIC v. Meyer, 510 U.S. 471 (1994). Did the Eleventh Circuit err by using an FTCAderived "discretionary-function exception," rather than Burr, to immunize the TVA from the plaintiffs' claims? 2. Did the Eleventh Circuit, in any case, correctly apply the discretionary-function test? Did that court correctly hold that safely raising a downed power line from the Tennessee River constitutes the sort of "policy"-laden discretionary work that this exception was designed to immunize from suit?

Counsel of record

For petitioner
Franklin Taylor Rouse
Conchin, Cloud & Cole, LLC

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 1 conference

Argument & decision

Argued January 14, 2019 — Franklin Taylor Rouse · Ann O'Connell Adams. Audio and transcript

Decided April 29, 2019. Opinion by Kagan.

Proceedings

May 31 2019
JUDGMENT ISSUED.
Apr 29 2019
Judgment REVERSED and case REMANDED. Kagan, J., delivered the opinion for a unanimous Court.
Jan 14 2019
Argued. For petitioners: Franklin Taylor Rouse, Huntsville, Ala. For respondent: Ann O'Connell Adams, Assistant to the Solicitor General, Department of Justice, Washington, D. C.
Jan 04 2019
Reply of petitioners Gary Thacker, et ux filed. (Distributed)
Dec 26 2018
Record from the U.S.D.C. Northern Dist. of Alabama is electronic and located on the District courts web site.
Dec 18 2018
Record received from the U.S.C.A. 11th Circuit is electronic and located on PACER.
Dec 13 2018
Brief of respondent Tennessee Valley Authority filed. (Distributed)
Dec 11 2018
Record requested from the U.S.C.A. 11th Circuit.
Nov 30 2018
CIRCULATED
Nov 28 2018
SET FOR ARGUMENT ON Monday, January 14, 2019
Nov 19 2018
Joint appendix filed.
Nov 13 2018
Brief of petitioners Gary Thacker, et ux filed.
Sep 28 2018
The order granting the petition for a writ of certiorari is amended as follows: The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.
Sep 27 2018
Petition GRANTED.
Jul 18 2018
DISTRIBUTED for Conference of 9/24/2018.
Jul 13 2018
Reply of petitioner Gary Thacker, et ux filed.
Jun 29 2018
Brief of respondent Tennessee Valley Authority in opposition filed.
May 24 2018
Motion to extend the time to file a response is granted and the time is further extended to and including June 29, 2018.
May 23 2018
Motion to extend the time to file a response from May 30, 2018 to June 29, 2018, submitted to The Clerk.
Apr 26 2018
Motion to extend the time to file a response is granted and the time is further extended to and including May 30, 2018.
Apr 25 2018
Motion to extend the time to file a response from April 30, 2018 to May 30, 2018, submitted to The Clerk.
Mar 21 2018
Motion to extend the time to file a response is granted and the time is extended to and including April 30, 2018.
Mar 20 2018
Motion to extend the time to file a response from March 29, 2018 to April 30, 2018, submitted to The Clerk.
Feb 26 2018
Petition for a writ of certiorari filed. (Response due March 29, 2018)