           Case: 16-15105   Date Filed: 07/17/2019    Page: 1 of 3


                                                           [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-15105
                      ________________________

                  D.C. Docket No. 5:15-cv-01232-AKK



GARY THACKER,
VENIDA L. THACKER,

                                               Plaintiffs - Appellants,

versus

TENNESSEE VALLEY AUTHORITY,

                                               Defendant - Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                             (July 17, 2019)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before ED CARNES, Chief Judge, and ROSENBAUM and DUBINA, Circuit
Judges.

PER CURIAM:
              Case: 16-15105     Date Filed: 07/17/2019   Page: 2 of 3


      This case is before us on remand from the United States Supreme Court. In

Thacker v. Tennessee Valley Authority, we held that the Tennessee Valley Authority

(“TVA”) was immune from suit, though its organic statute included a sue-and-be-

sued clause, because a discretionary-function exception to liability under the Federal

Tort Claims Act applied. 868 F.3d 979, 981-883 (11th Cir. 2017). The Supreme

Court held that the TVA was not entitled to immunity on that basis and remanded

the case to this Court. Thacker v. Tennessee Valley Authority, 139 S. Ct. 1435, 1440-

41 (2019).

      In remanding, however, the Supreme Court noted that that the TVA could be

immune to the suit on the basis of “an implied restriction” on an organic statute’s

sue-and-be-sued clause. Thacker, 139 S. Ct. at 1441 (citation and quotation marks

omitted). As the Court made clear, there are two steps to determining whether the

TVA is immune on that basis. First, a court asks whether the alleged conduct was

governmental or commercial. If the TVA’s alleged conduct was “commercial—the

kind of thing any power company might do—the TVA cannot invoke sovereign

immunity,” and that ends the inquiry, since the TVA would be “liable to the same

extent as a private party.” Id. at 1444. But if the TVA has been engaged in

governmental activity, the court must consider a second question: whether immunity

is nonetheless “necessary to avoid grave interference” with the performance of a




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governmental function. Id. at 1444 (citation and quotation marks omitted). As the

Supreme Court has explained, that standard sets a “high bar.” Id. at 1443.

      The district court has not had the opportunity to consider whether the TVA

should be immune to this suit on the basis described in the Supreme Court’s decision.

We therefore remand the case to the district court to decide the question in the first

instance.

      REMANDED.




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