Thacker et al v. Tennessee Valley Authority

Filing 20

ORDER-The TVA's motion to dismiss 11 is GRANTED and this matter is DISMISSED without prejudice for lack of subject matter jurisdiction. Signed by Judge Abdul K Kallon on 5/23/2016. (AVC)

FILED
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
GARY THACKER
and VENIDA L. THACKER,
Plaintiffs,

vs.
TENNESSEE VALLEY
AUTHORITY,

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2016 May-23 PM 02:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

Civil Action Number
5:15-cv-1232-AKK

Defendant.

ORDER
Gary Thacker and Venida L. Thacker bring this action against the Tennessee
Valley Authority (“TVA”) alleging negligence and wantonness arising from an
accident that occurred on the Tennessee River in July 2013. See generally doc. 1.
Specifically, the Thackers allege that they sustained injuries due to the TVA’s
negligence in supervising and training its employees, as well as its failure to
implement policies instructing employees on the proper response to emergencies.
Doc. 1. The TVA has moved to dismiss this complaint, doc. 11, contending that
because the complaint concerns personal injuries arising out of the TVA’s response
to an emergency created during maintenance of its electrical power lines, this court
lacks subject matter jurisdiction under the discretionary function doctrine.1

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The court also has for consideration the Defendant’s Motion for Leave to File Excess Pages, doc. 18, which is
GRANTED.

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A motion to dismiss filed under Fed. R. Civ. P. 12(b)(1) may be based upon
either a facial or factual challenge to the complaint. McElmurray v. Consolidated
Gov’t of Augusta-Richmond Cty, 501 F.3d 1244 (11th Cir. 2007). Where the
challenge is facial, the court must merely “see if [the] plaintiff has sufficiently
alleged a basis of subject matter jurisdiction, and the allegations in his complaint
are taken as true for the purposes of the motion.” Lawrence v. Dunbar, 919 F.2d
1525, 1529 (11th Cir. 1990). By contrast, where the challenge is factual, as it is
here, the existence of subject matter jurisdiction is considered irrespective of the
pleadings, “and matters outside the pleadings, such as testimony and affidavits are
considered.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981) (citing
Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)).
The TVA is a “constitutionally authorized corporate agency and
instrumentality of the United States.” Bobo v. AGCO Corp., 981 F. Supp. 2d 1130,
1137 (N.D. Ala. Oct. 29, 2013); see also 16 U.S.C. § 831 et seq. (1933). While the
Thackers are correct that the TVA does not enjoy sovereign immunity, see 16
U.S.C. § 831c(b), they overlook that, “[w]hen TVA is engaged in a governmental
function that is discretionary in nature, where the United States itself would not be
liable, TVA cannot be subject to liability.” Hill v. Tenn. Valley Auth., 842 F. Supp.
1413, 1420 (N.D. Ala. 1993). See also U.S. v. Smith, 699 U.S. 160, 168 (1991)
(noting that the TVA is “liable to suit in tort subject to certain exceptions.”).
Whether the TVA is entitled to the discretionary function exception depends on
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two things: (1) whether the challenged act or omission violated a mandatory
statute, regulation, or policy that allowed no judgment or choice; and (2) if the
challenged conduct is discretionary, i.e., that there is no mandatory policy
regarding a particular course of action, whether the conduct is the kind the
discretionary function exception was designed to shield. See U.S. v. Gaubert, 499
U.S. 315, 322–3 (1991). Basically, “[f]or a complaint to survive a motion to
dismiss, it must allege facts which would support a finding that the challenged
actions are not the kind of conduct that can be said to be grounded in the policy of
the regulatory regime.” Id. at 324–25. If a mandatory statute, regulation, or policy
exists, then the discretionary function exception would not apply because “conduct
cannot be discretionary unless it involves an element of judgment or choice.”
Berkovitz by Berkovitz v. U.S., 486 U.S. 531, 536 (1988).
Turning to the allegations here, because the conduct is the TVA’s response
to an emergency that created a hazard to boaters on the Tennessee River, rather
than a purported failure to carry out the mandate of its existing policy, doc. 1 at 3–
7, the first part of the Gaubert discretionary test is satisfied. Moreover, as to the
second part, it is axiomatic “that safety decisions represent an exercise of
discretion giving rise to governmental immunity.” Johns v. Pettibone Corp., 843
F.2d 464, 467 (11th Cir. 1988). See also Slappey v. U.S. Army Corps of Engineers,
571 F. App’x 855, 860 (11th Cir. 2014) (“an agency’s decision whether to warn,
and how to warn, implicates policy concerns for purposes of the discretionary
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function analysis.”); Monzon v. United States, 253 F.3d 567, 572 (11th Cir. 2001)
(decision whether to warn about rip currents is a discretionary function). Therefore,
absent a policy mandating the manner in which the TVA should respond to water
hazard emergencies,2 doc. 12-1 at 3, the court finds that the TVA’s actions in
responding to the river incident here are clearly discretionary as they involve some
judgment and choice. Accordingly, the court finds that the conduct here is the type
that the discretionary function exception was designed to protect, and that the
complaint is due to be dismissed for lack of subject matter jurisdiction. Hughes v.
United States, 110 F.3d 765, 767 n.1 (11th Cir. 1997) (The court does not look to
see “whether the allegations of negligence are true,” but “whether the nature of the
conduct involves judgment or choice and whether that judgment is of the kind that
the exception was designed to protect.”).
For these reasons, the TVA’s motion to dismiss, doc. 11, is GRANTED,
and this matter is DISMISSED without prejudice for lack of subject matter
jurisdiction.
DONE the 23rd day of May, 2016.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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The Thackers’ complaint does not identify a statute, regulation, or mandate that TVA was required to follow and
instead relies on the TVA’s decision not to place warning flags or buoys in the area. Doc. 1 at 5–6.

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