This Week’s Brief: April 29

Last week, the Court concluded its schedule of oral arguments for the term. Thus, the Court’s proceedings moving forward will deal exclusively with private conferences, Orders, and Opinions. This week was no different. Following last Friday’s conference, the Court on Monday released its Orders list, in which it did not grant any cases for next term but did call for the views of the U.S. Solicitor General (“CVSG”) in a copyright case (more on that below). The Court then released its decision in Thacker v. Tennessee Valley Authority. The Court was not in session Tuesday–Thursday, and met for its private conference on Friday. Here is your Brief for the week of April 29.


Opinions: 1
Oral Arguments: 0
Cert. Grants: 0
CVSGs: 1


At 9:30am EDT, the Court released its Orders list, in which it granted review for no new cases but did issue a CVSG for one case, Google, LLC v. Oracle America, Inc. The U.S. Solicitor General (SG) has two roles in the context of the Supreme Court. First, the SG represents the federal government when it is a party in a case. (So, whenever you see a case name like “United States v. [Respondent]” or “[Petitioner] v. United States,” this means the federal government is a party in the case, and the SG will write and file briefs and argue for the federal government before the Court.) Second, the SG often serves in an advisory role for the Court. This includes filing amicus briefs in granted cases to give the Justices more information to help them make their decision, as well as opining whether or not the Justices should grant a case. This latter responsibility, when the Court asks the SG to do so, is what the Court refers to as “calling for the views of the Solicitor General.”

The case stems from a copyright feud between tech giants Google LLC and Oracle, Inc., who owns Sun Microsystems, the creator of the popular Java programming language. When Google updated its Android operating system a few years ago, Oracle claimed it impermissibly used some of Oracle’s Java software code and subsequently sued for copyright infringement. In 2016, a jury found against Oracle’s claims and held that Google did not infringe Oracle’s copyright. But last year, the U.S. Court of the Appeals for the Federal Circuit—an appeals court with special jurisdiction over cases concerning intellectual property, patents, and copyrights, among other things—reversed the jury’s finding and held that Google illegally used Oracle’s Java code. Google then appealed to the Supreme Court. In the case, Google has asked the Supreme Court to decide two questions. First, can copyright protection extend to a software interface program? And second, when Google updated its mobile operating system, did its use of the software interface constitute “fair use?” Andrew Chung for Reuters has more on the case.

Were the Court to take up the case, it could have sweeping ramifications in the world of software development. It has even been hailed as the “copyright lawsuit of the decade.”

At 10:00am EDT, the Court released its one and only decision of the week in Thacker v. Tennessee Valley Authority. In a unanimous opinion by Justice Kagan, the Court held the Tennessee Valley Authority (TVA) cannot invoke a “discretionary function exception” under the 1946 Federal Tort Claims Act as a basis for sovereign immunity from lawsuits.

In 2013, the TVA—a corporation chartered by the federal government—was stringing a power line across the Tennessee River when one of the machines encountered a problem and dropped the power line into the river. Gary Thacker, who was participating in a professional fishing tournament, was driving his boat in the same part of the river when the boat struck the power line as the TVA was attempting to raise it out of the water. Thacker sustained severe spinal injuries and Thacker’s friend, who was also in the boat, died instantly. Thacker sued the TVA in federal court for damages, alleging negligence on a number of grounds.

When Congress created the TVA, it expressly provided that the TVA could “sue and be sued in its corporate name,” and the Federal Tort Claims Act (FTCA) waived sovereign immunity from suit—with a handful of exceptions—for all entities acting on behalf of the federal government. Relying on one of these exceptions, a district court dismissed Thacker’s suit, and the Eleventh Circuit Court of Appeals affirmed. That exception applies when a federal government entity performs a “discretionary function or duty” in the exercise of its work on behalf of the federal government. Both the district court and the Eleventh Circuit ruled that when the TVA was raising the downed power line from the river, it was performing this exact kind of “discretionary function.” Thus, the courts held, the TVA met the discretionary function exception and therefore enjoyed sovereign immunity from Thacker’s tort suit. Thacker then appealed to the Supreme Court, who granted certiorari.

Writing for a unanimous court, Justice Elena Kagan sided with Thacker and held that the TVA cannot rely on the FTCA’s discretionary function exception to claim sovereign immunity from tort suits. Kagan first reviewed the 1933 Tennessee Valley Authority Act (TVA Act), the Congressional statute that created the TVA itself. She noted that the TVA Act says nothing regarding any sort of immunity from suit for discretionary actions. The TVA Act explicitly states that the TVA may “sue and be sued,” thereby waiving the right of the TVA (as a government entity) to sovereign immunity. While the statute does subject that waiver to some exceptions as provided in the act itself, Kagan found that none of those exceptions have anything to do with tort claims, let alone one hinging on “whether the challenged conduct was discretionary” (emphasis added).

Kagan then turned to the application of the FTCA to the TVA. She disagreed with the federal government’s claim that when the TVA performs discretionary actions, it enjoys sovereign immunity under the FTCA via the discretionary function exception. When Congress enacted the FTCA, it explicitly exempted the TVA from the FTCA’s discretionary function exception to waiving sovereign immunity. 28 U.S.C. § 2680(l) (the now-codified FTCA) expressly states that the FTCA’s discretionary function exception does “not apply to[] [a]ny claim arising from the activities of the [TVA].” Thus, Kagan held, the “FTCA’s discretionary function provision has no relevance to this case.”

Finally, Kagan addressed a third argument that while the TVA Act does not explicitly provide for an immunity exception to its sue-and-be-sued clause, it may implicitly do so. In Federal Housing Administration v. Burr, 309 U.S. 242 (1940), the Supreme Court ruled that a sue-and-be-sued clause in a statute establishing a government entity (like the TVA Act creating the TVA) may contain “implied exceptions.” Under Burr, a court may look for an implied exception when one of two conditions is “clearly shown”: (1) that the “certain type of suit[] [is] not consistent with the statutory or constitutional scheme,” or (2) that an implicit exception “is necessary to avoid grave interference with the performance of a governmental function.” On the first condition, Kagan flatly rejected the federal government’s contention. “Congress,” by enacting 28 U.S.C. § 2680(l), “made a considered decision not to apply the FTCA to the TVA,” she wrote (emphasis in original). To ignore §2680(l) is akin to “let[ting] the FTCA in through the back door, when Congress has locked the front one.” And on the second condition, Kagan did not agree that allowing the TVA to be sued presents a “grave interference” to the exercise of its “governmental function[s].” This is because many of the TVA’s activities are not “governmental functions” but rather commercial functions—like installing power lines for customers. On this point, Kagan noted that the Supreme Court routinely has distinguished governmental functions from commercial functions, asserting that “suits based on a public corporation’s commercial activity may proceed as they would against a private company” (emphasis in original).

In sum, Kagan ruled that the District and Appeals Courts erred in finding that the TVA enjoys sovereign immunity from tort suits under the FTCA’s discretionary function exception. The case was remanded back to the lower court to determine two things: first, whether the TVA’s actions of installing the power line and raising it from the river were governmental or commercial in nature; and second, if its actions were in fact governmental, whether waiving the TVA’s sovereign immunity from tort suits presents that same kind of “grave interference” to its ability to carry out its governmental functions under Burr.

At SCOTUS Blog, Gregory Sisk, professor at the University of St. Thomas School of Law, has more on the Court’s opinion in Thacker. Jordan S. Rubin reviews Justice Kagan’s decision for BloombergLaw.


The Court held no proceedings on Tuesday, Wednesday, and Thursday.


The Court met for its weekly Friday Conference, at which it routinely reviews the petitions on its docket and decides whether to grant certiorari for any of them. We can expect news from this Conference in the Court’s Orders list on Monday, May 13. Some high profile petitions awaiting action on Court’s docket include a challenge to an Indiana state abortion law; a trio of cases concerning the Department of Homeland Security’s push to whittle away at the Deferred Action for Childhood Arrivals policy; and a First Amendment religious objection to designing and creating a custom wedding cake for a same-sex wedding, a case analogous to the questions presented in last term’s Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n.

Next Week’s Preview

The Court will not be releasing Orders or Opinions on Monday. It will meet for its weekly private conference on Friday.

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