GARY THACKER, ET UX., Petitioners, v. TENNESSEE VALLEY AUTHORITY, Respondent
Interviewer(s): Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Brett M. Kavanaugh, Sonia Sotomayor
Interviewee(s): Ann O'Connell Adams, Franklin Taylor Rouse

John G. Roberts, Jr.: We'll hear argument first this morning in Case 17-1201, Thacker versus the Tennessee Valley Authority. Mr. Rouse.

Franklin Taylor Rouse: Mr. Chief Justice, and may it please the Court: Congress created the Tennessee Valley Authority as a corporation that could sue and be sued.

The TVA Act states: Except as otherwise specifically provided in this Act, the corporation may sue and be sued in its corporate name. Nothing in the TVA Act specifically provides the exception that the TVA now urges, immunity for what it calls discretionary work. And for new --

Sonia Sotomayor: I'm sorry.

Are you denouncing the existence of a core government activity not being immunized? Whether to place a dam or not?

Franklin Taylor Rouse: No, this -- this -- there's two totally separate things.

Our --

Sonia Sotomayor: No, they're basically the same, which is how far does -- if you recognize some core government functions performed by the TVA, how far does that immunity go? Isn't that the question before us?

Franklin Taylor Rouse: I -- I think so, but I -- in -- in this circumstance is -- the conduct at issue is raising a power line out of the water, replacing an electrical conductor.

Whatever might be said about deciding where to put a dam or how to -- to manage the flow of the Tennessee River and to change its course or anything like that, it's -- this conduct just does not implicate that.

John G. Roberts, Jr.: Well, I suppose it depends at what level of generality you describe the conduct.

Perhaps you're right if you talk about a particular, you know, cable at a particular place, but if you decide -- if you describe the -- what is at issue is regulating safety along the waterway, then maybe it starts to sound like -- like more the exceptions that were talked about in Burr?

Franklin Taylor Rouse: And that may and would -- and I think those exceptions would certainly implicate the Federal Tort Claims Act and the discretionary -- discretionary immunity there. But, under Burr, I think the -- the question begins with the presumption that -- that Congress has taken this entity, it has created it; it has not made it a new executive department, but it has said it can sue and be sued in its own name.

It has cast it aside and said it can fend for itself.

We're allowing it to do its own work.

We'll give it some powers, but we're going to withhold others. And so there's got to be some deference to Congress that Congress took these steps.

And to just say, well, it performs some functions, it's governmental, and you start making that distinction is the exact error that we think that the lower courts made here.

Samuel A. Alito, Jr.: How do you think this is supposed to work? If we just -- if -- if the court just applies Burr, how is -- how is the court supposed to proceed in determining whether there is immunity? Look at the -- make a case-by-case determination whether the particular claim in that case falls within the -- the two categories set out in Burr, so is it consistent with the statutory and constitutional scheme, or, more to the point, does -- is it necessary to have immunity to avoid grave interference with the performance of a governmental function?

Franklin Taylor Rouse: So under -- I think under the test that at least the second prong --

Samuel A. Alito, Jr.: Okay.

Franklin Taylor Rouse: -- certainly looks at the specific conduct at issue, and it says, what proof do you have that immunity here is needed? It must -- it must be clearly shown that it is necessary to prevent some grave interference with the performance of a governmental function. Not just it may be tougher, it may be harder, or you may have to pay normal tort damages, but what grave interference is present here? Whereas --

Samuel A. Alito, Jr.: You think this is -- this is to be done a case-by-case basis or categorical basis?

Franklin Taylor Rouse: I think that under the second prong, a -- a case-by-case basis is going to be the more usual result, but, under the first prong, you're looking at, is this the type of suit that is consistent or inconsistent with the statutory or constitutional scheme? In this circumstance, there's no real argument that this case is inconsistent with the statutory scheme.

There's no doubt that liability here will somehow mean the TVA can't do its other functions or anything like that. It's not --

Stephen G. Breyer: I guess there is some -- I guess there is some argument on the other side, and I take it that a main argument that registered in my mind was where Justice Sotomayor started out.

And you reply to that and say let's do it on a case-by-case basis. Well, subsequent to Burr, Congress enacted the Federal Tort Claims Act.

Under -- it contains a discretionary exemption.

And there's a well-worked-out body of jurisprudence. And so what you're asking us to do is to have each court decide each thing that the TVA and probably 100 other government agencies with a sue-and-be-sued clause does and decide case by case, which is what you said, whether it does or does not fall within the discretionary exemption. That seems to me a very complex, difficult decision that could end up with probably a hundred cases before this Court deciding what this different thing, serving the same purpose, does. Now that, I think, is at least one argument that I'd like to hear your response to.

Franklin Taylor Rouse: The Burr test, we believe, is actually much easier to look at for the judiciary than the Federal Tort Claims Act test.

The Federal Tort Claims Act test looks at the conduct at issue, whether -- it looks at statutes and internal policies, and then it asks the court to say, is this the type of conduct that is susceptible to policy analysis? Is this what --

Stephen G. Breyer: Uh-huh.

Franklin Taylor Rouse: -- that Congress was trying to protect under the FTCA?

Stephen G. Breyer: And I take it if we apply Burr, we have to go case by case and decide whether, for other reasons, it was plainly the purpose of Congress to use sue-and-be-sued clause in a narrow sense.

And we have to decide just what you said, case by case. So my question is not whether case by case, but do you do that without reference to the well-worked-out body of discretionary exception law under the FTCA? That's the point.

Franklin Taylor Rouse: Yes.

Stephen G. Breyer: I mean, you'll -- you're saying don't use the FTCA; use Burr. And I want to know, is that a big difference? And if that is a big difference, is it case by case? And that's where my question came from.

Franklin Taylor Rouse: It is a big difference, totally separate.

And the Burr test is much easier for the judiciary in its traditional role of -- of looking at things that -- what has Congress enacted? Under the first -- under the first prong of Burr, you're just looking at whether the type of suit -- don't have to look anything further than the complaint.

What is the challenged conduct?

Stephen G. Breyer: And Burr -- look, I'll say -- try it once more.

We started with Justice Sotomayor.

They build dams.

Well, somebody's hurt during the building of a dam. There are farmers, their land is flooded by the dam, their crops might be destroyed.

There are many kinds of crops.

There are many ways of building dams.

There are many arguments for and against deciding whether there's a dam. Okay? What do you want us to do? Look to the FTCA or something different? That's the question that I think you were beginning with. And it seemed -- I wanted to follow up because that seems the central issue in the case to me.

Franklin Taylor Rouse: We should look at Burr. And under Burr, the presumption begins with the fact that Congress has launched this entity, that it has --

Sonia Sotomayor: Counsel, let -- let me phrase it slightly differently.

Is your argument based on the sue-to-be -- permission to sue and be sued clause, or is it welded in -- in part in the fact that the TVA was excluded from the FTCA? I think, once you start with that it was excluded, then we have to figure out what applies, right?

Franklin Taylor Rouse: Correct.

Sonia Sotomayor: And why we should keep the FTCA in when Congress told us not to. Correct?

Franklin Taylor Rouse: Well -- correct.

The Federal Tort Claims Act just does not apply. The TVA is exempted.

Sonia Sotomayor: There's three entities that were excluded from the FTCA.

Franklin Taylor Rouse: Correct.

Sonia Sotomayor: So how much does your argument rely on the sue-to-be-sued clause or -- or the exclusion of the TVA?

Franklin Taylor Rouse: Well, it's a little of both and it's this Court's precedent.

In -- in Meyer in 1994 --

Sonia Sotomayor: All right.

So, if it's -- if it's this Court's precedent, then give us a reason addressing Justice Breyer's point, which is the Burr analysis, since, by definition, it has to involve a case-by-case analysis. I think, but I'm not sure, were you saying that so does the discretionary --

Franklin Taylor Rouse: Correct.

The lawsuit is there.

The complaint is there.

And so under --

Sonia Sotomayor: So both of them require a case-by-case analysis?

Franklin Taylor Rouse: They're both going to require a case-by-case basis.

Sonia Sotomayor: I think what Justice Breyer is saying --

Elena Kagan: Well, that's true -- please.

Sonia Sotomayor: I'm sorry, that the discretionary policy exemption is less complex than the Burr rule.

Franklin Taylor Rouse: I believe that at least where the judiciary is concerned it's -- it -- it's -- it might be more complex in some ways but less complex in other ways.

It might be more complex in that it requires you to take a much deeper look into the facts of the case than Burr. Burr is just looking at is this the type of suit that was not contemplated by the statute.

And so then you look at the statute. You don't have to do anything other than the complaint.

Sonia Sotomayor: That's on step 1. But step 2?

Franklin Taylor Rouse: That's on step 1.

On step 2, yeah, there -- there needs to be a showing. And the idea is that Congress has launched this entity out.

It has made it sueable.

And so now it has the proof to show -- it has the burden to submit proof to show that immunity is needed here. And we don't have that here.

Elena Kagan: Right.

But that makes it sound, Mr. Rouse, and I think this is what everybody is getting to, is that you're saying in most cases we have the discretionary function exception.

And here, with respect to the TVA or other entities like the TVA, we're essentially going to have a discretionary function exception light. We're going to have something where we look to the same concerns, the same animating purposes, but we just have a higher bar.

Is that what we're doing, or is it a different inquiry in kind?

Franklin Taylor Rouse: It is a different inquiry in kind.

Elena Kagan: Well, that's what I'm not getting, because if you, again, focus, as Justice Sotomayor said, on the question of intrusion, impedement of -- of government operations, it seems like the same inquiry, just a higher standard --

Franklin Taylor Rouse: So --

Elena Kagan: -- a higher bar.

Franklin Taylor Rouse: -- the Federal Tort Claims Act was by Congress.

Congress has never -- this Court, at least under the Federal Tort Claims Act, has never said, as a matter of separation of powers, the discretionary function exception in the Federal Tort Claims Act exists in all areas of law.

It's never said that. It actually -- the Court used very specific language in saying, in Varig Airlines, which my friends at the TVA try to draw so many distinctions -- or so many lessons from, the Court in there said Congress -- Congress wished to prevent judicial second-guessing. And by fashioning an exception, Congress took steps to handicap -- to protect the handicap of efficient government operations.

Samuel A. Alito, Jr.: Here's what bothers me about this case, and I'll ask the same question, if I have a chance, to the Assistant to the Solicitor General. The -- the TVA does some things that are purely governmental and it does some things that are pretty much purely commercial.

It's a hybrid entity. As to the -- as to its commercial activities, it's hard to see why a -- a business should be exempt from tort liability for every discretionary business decision that the business makes. But, as to its governmental activities, it's kind of hard to see why the regime should be different from the regime under the Federal Tort Claims Act. Now, under Burr, the Court is supposed to ask, you say, whether it interferes with a governmental function, but I'm not quite sure what is the governmental function when you're talking about a hybrid entity like that.

Does it mean something that only the government can do?

Franklin Taylor Rouse: No.

I mean, the case we're talking about here involves something contractors could do.

It's inherent work a day labor.

But, under -- under Burr, the -- the governmental function, I believe, it is -- it is -- it takes into higher account -- it just doesn't concern that.

It concerns that the TVA serves much larger purposes in that it can do things and things can be protected under Burr, such as, you know, its -- its economic and its regulatory or policy decisions. All of those things can be protected under Burr.

Elena Kagan: You see, I think, Mr. Rouse, what Justice Alito may be offering you is a way out of the difficulty of some of these questions, is that, with respect to some of the TVA's functions, we shouldn't be applying something that's sort of like the discretionary function exception but not really like the discretionary function exception. Rather, we should be applying nothing. With respect to the commercial functions of the TVA, the TVA ought to be treated just like any other corporate entity.

Franklin Taylor Rouse: We absolutely think that's the case here.

This is -- this -- the TVA is not mandated to do any of the work that was involved here.

This is a choice that it makes. And it is a choice that it makes, and it accomplishes that goal without any funding or appropriations from Congress.

Its -- all of its activities are completely self-funded. And it just doesn't concern -- the federal government is just not concerned with it at this point.

Samuel A. Alito, Jr.: Part --

Franklin Taylor Rouse: Maybe --

Samuel A. Alito, Jr.: Go ahead.

Franklin Taylor Rouse: Maybe in -- in historical -- in the Depression Era times, in the Tennessee Valley, during that point in time, but now it is doing all of the stuff on its own, without help, without anything like that, and it's making profit, profit that it's not turning back over to the U.S. Treasury. It's operating just as a private corporation. And so we absolutely think that --

Sonia Sotomayor: Sorry.

There are some functions it does that are governmental. We're trying to get to the dividing line.

And Justice Alito said, if it's commercial, it should not be subject to any exemption. If it's governmental, are you agreeing that it does receive immunity?

Franklin Taylor Rouse: Only if the TVA shows that it clearly meets one of the Burr prongs.

Sonia Sotomayor: All right.

So let's assume it does, where to build a dam.

Is that governmental enough for you?

Franklin Taylor Rouse: I don't know under those circumstances, but I will point the Court to an example that the Court has actually considered, and this is a pre-Burr case.

It's Tennessee Electric Power Company versus TVA, and 306 U.S. 118.

And in that case, the challenged conduct was the TVA.

Somebody sought a -- a private power company sought an injunction against the TVA so that it could not produce or sell power at all.

Sonia Sotomayor: Well, it seems to me that that's really a close question, isn't it?

Franklin Taylor Rouse: I -- I -- I think that under those cases, because the Court in that case --

Sonia Sotomayor: Let's assume we -- on common ground.

There are some functions that are governmental.

You're unwilling to specify which at the moment. But do you -- do you agree that there are some functions that may be governmental?

Franklin Taylor Rouse: There are some functions that may be governmental and Burr accounts for --

Sonia Sotomayor: So that's fine. The question before us is what to do about the middle stuff, or are you saying this is just commercial? And if you're saying it's just commercial, explain the Chief Justice's description of why it might not be just commercial, and how do we draw that line?

Franklin Taylor Rouse: It's not whether something is commercial or not commercial.

I think the commercial activity certainly imply more -- less immunity -- or apply less immunity.

But there's got to be some sort of deference that Congress has -- what Congress has done, and that Congress has completely stripped this entity of the immunity under this Court's law. This Court has said that these waivers are broad, that they must be liberally construed, that any exceptions must be narrowly construed.

Samuel A. Alito, Jr.: You said --

John G. Roberts, Jr.: Well, we've held -- we've held that the immunity has not been completely stripped, right? We've recognized that there are circumstances under which the TVA, as well as these other entities that are carved out of the FTCA, nonetheless have immunity.

Franklin Taylor Rouse: Yes, Mr. Chief Justice, absolutely, that there are circumstances.

But, here, in this case, we don't believe, one, that that implicates the kind of immunities under Burr that this Court talked about.

John G. Roberts, Jr.: Well, maybe we need some examples of ones you think are covered.

I mean, one of the things the TVA does is regulate flood control in the area. So, at a particular moment, it has a choice whether to let more water through, which may damage lower downstream farms, or keep more water back, which might damage upstream farms. Now, if you're downstream and you're injured, can you bring a negligence action against the TVA for that decision, and show -- for example, show they -- they did the calculations wrong because of pure negligence? Can you bring that action against the FT -- against the TVA?

Franklin Taylor Rouse: I think so.

I think that under that action you can, because, one, you're not talking about the -- there's no statutory scheme issue.

John G. Roberts, Jr.: So flood control is something that you can sue the TVA on?

Franklin Taylor Rouse: There are certain circumstances where, absolutely, I think so.

John G. Roberts, Jr.: Well, what are -- give me an example of something you can't sue them on.

Franklin Taylor Rouse: I think that if I'm a private landowner and I've got land on the -- right on the banks of the Tennessee River, and the TVA wants to exercise some of the power that Congress has given it in being able to use eminent domain, take land to put up power lines, then I can't turn around and sue the TVA and say no, you can't do that. That is one of those things where, no, Congress has --

John G. Roberts, Jr.: Well, but you can't sue -- you can't sue somebody with eminent domain power anytime.

I mean, if they're giving you -- if you -- if they have eminent domain power, they're paying you for it, so you can't sue them to -- to stop it.

Franklin Taylor Rouse: Or a -- or, I guess, a -- a negligence action saying no, you should have put the -- the lines -- you're going to take my land, you should have taken my neighbor's land and put the lines that way.

I don't know that that is something that the statutory scheme here necessarily contemplates. But I do think that Congress -- and if you look at the legislative history, Congress -- Congress absolutely contemplated tort liability with --

Brett M. Kavanaugh: Part of the problem is figuring out what Burr means, to my problem at least.

And you said there's a big difference between Burr and the discretionary-function exception. How would you articulate that big difference?

Franklin Taylor Rouse: We think that Burr accounts for much more.

The discretionary-function exception only looks at the conduct at issue, the executive conduct at issue.

Burr accounts for the other branch of government, Congress, that it has created an entity.

Brett M. Kavanaugh: Well, that doesn't tell me what the exception means, though.

That just describes the situation.

Franklin Taylor Rouse: So the exceptions would be an inconsistency with the statutory scheme, some -- some lawsuit that is just not contemplated by the text.

It's not allowed. And, here, we don't have that.

There's no argument or even assertion that the court --

Brett M. Kavanaugh: What about -- what about the second -- I'm sorry to interrupt, the second prong, though, grave interference? How do you think about that?

Franklin Taylor Rouse: I think that there -- normal tort liability in this case does not implicate the type of governmental conduct that Burr's second prong is written to protect.

Brett M. Kavanaugh: And are you -- just so I understand your argument here, are you asking us to simply hold that the right test is Burr, instead of discretionary function, and then to remand for application of Burr in the first instance by the court of appeals?

Franklin Taylor Rouse: At -- at a minimum.

I think at a maximum -- that we can live with that --

Brett M. Kavanaugh: What's the maximum? Yeah.

Franklin Taylor Rouse: The maximum is that we can look at this as a 12(b)(1) dismissal, we can take the facts as stated in the complaint, in the affidavit, as true, and say no, this is just not the type of conduct that is inconsistent with the constitutional scheme, because that's really the only element that is at issue here. There was no findings of fact on the grave interference test.

The court -- lower courts didn't consider it.

There's -- there was no showing under Burr. The whole issue here is the TVA is trying to couch the constitutional scheme in a separation of powers in that this court would be violating separation of powers if it were to exercise jurisdiction and even hear the case. That's the only issue.

But this Court has never looked at separation of powers that way.

It --

Elena Kagan: But I think people are actually a little bit more interested in the second prong of -- of Burr, which is the interference with government operations.

So, if you were to answer Justice Kavanaugh's question and say this is not the conduct that should be immune from suit because, how would you finish the sentence in thinking about the second prong of Burr?

Franklin Taylor Rouse: Because there's no grave interference.

The TVA can raise rates on me, a citizen who lives 30 minutes away from where this happened.

I -- it can raise rates on me as one of the 10 million households that it has -- it serves power to. It can buy insurance.

It's self-funded.

It's not like other branches of -- departments of the government that need congressional appropriations. And, three, this is not the kind of conduct -- liability here for raising a downed power line is not the kind of conduct that is going to affect the TVA's ability to go out tomorrow and the next day and every day after that and continue to produce power.

It is not the kind of conduct.

These facts will not gravely interfere with the TVA's functions. If there are no further questions, I'd like to --

Stephen G. Breyer: I will go back for a second because I think that we have a statute, TVA exempt from the Federal Tort Claims Act.

I thought the government is agreeing with you. Burr does apply.

But Burr sometimes says that we have the equivalent of a Federal Tort Claims Act.

Sometimes.

Okay?

Franklin Taylor Rouse: Correct.

Stephen G. Breyer: At least.

And you agree with that?

Franklin Taylor Rouse: Yes.

Stephen G. Breyer: Okay.

So let's go back and see if you have anything else to say. Suppose we wrote this in the opinion. Yes, when the TVA is performing a governmental function, the FTCA does apply, i.e., the discretionary exemption part.

But when it is not and acting just like a private business person, it doesn't. Does that satisfy you? And then we leave it to the lower courts to decide which is which.

Okay? Suppose we did that.

Would that satisfy you?

Franklin Taylor Rouse: What we have consistently argued in this case is that Burr is the test. And so --

Stephen G. Breyer: No, they don't disagree that Burr applies.

I think -- I think I'm right about that.

They don't disagree that there is an exemption from the FTCA. So the problem I guess for me is not who's right or wrong, but what are the words that we use to describe when Burr applies and when it doesn't? And that's where I need some help.

I may have not analyzed the case yet correctly, but, if I have, then I need to know the answer to that question.

Franklin Taylor Rouse: I don't think there is a line for these entities between commercial and governmental.

One is immune; one is not.

I think the question is that all of its functions, whatever power it has, whatever it does, each and all of those things may come under Burr.

You may have -- the discretionary-function test under the FTCA and Burr may reach the same conclusion, but they're different.

And it's governmental functions here.

It may be perfectly amenable to suit and not implicate the constitutional, statutory scheme, and there will be no grave interference in its ability to do the work the next day, even its governmental functions.

And it also applies for its commercial functions. So making that line, I don't know is -- meets Burr.

And that one doesn't apply and one does.

I think it all can apply, and you can have results, what the TVA forces here, and you can have results where nothing happens at all.

And it's sueable just like a private entity who might put up a dam. But, if there are no further questions, I'd like to reserve my time.

John G. Roberts, Jr.: Thank you, counsel. Ms. Adams.

Ann O'Connell Adams: Mr. Chief Justice, and may it please the Court: This Court recognized in Burr that a sue-and-be-sued clause need not be read to waive immunity for absolutely everything that the agency could be sued for.

It described categories of claims that might not be allowed, notwithstanding a purportedly broad waiver of immunity. Discretionary-function immunity, which is grounded in constitutional separation of powers principles and preexisted the enactment of the Federal Tort Claims Act, is precisely the type of immunity that Congress had in mind when that -- and it would have expected to survive.

Sonia Sotomayor: Ms. O'Connell, is it, though? As Justice Alito pointed out, it is a hybrid entity.

It does governmental functions and it does commercial functions. You'll have to explain to me why raising a power line is a government function. Every -- and I understand there are some private contractors who actually own and operate and sell fuel from dams.

If a power line goes down, they have to raise it.

Any commercial enterprise that creates a danger has to fix it.

That's what businesses do, whether it's the government running the business or not. What is a governmental discretionary policy having to do with creating a danger in the operation of its business, meaning the power line is down, no one's going to say the government is authorized to be negligent in fixing it and harming people? You want to take it to the broader discretion of do I have one or two men, do I give this type of warning or that kind of warning.

But why does that take it out of a commercial choice? Why does it put it into a government choice?

Ann O'Connell Adams: I think the --

Sonia Sotomayor: When this Act can be both government and business?

Ann O'Connell Adams: I think --

Sonia Sotomayor: Depending on who the operator is, not because it is the government doing it.

Ann O'Connell Adams: I think that the larger issue here, Justice Sotomayor, is that the discretionary-function immunity historically has never drawn a distinction between governmental functions and commercial functions.

It started out --

Sonia Sotomayor: It hasn't, but Congress did with the sue-and-be-sued clause.

Ann O'Connell Adams: Well, and -- but Congress also, in the Federal Tort Claims Act, brought all sue-and-be-sued agencies except for the TVA, with --

Sonia Sotomayor: Exactly.

It was three agencies that it said are not governed by this.

So shouldn't we give meaning to what Congress said?

Ann O'Connell Adams: No.

I --

Sonia Sotomayor: It took it out of.

Ann O'Connell Adams: I don't -- but, by doing that, I don't think Congress -- the -- the legislative history of the Federal Tort Claims Act that this Court described in Dalehite and --

Sonia Sotomayor: By the way, if it had left it in the FTCA, what additional suits do you think could have been brought -- could not have been brought? Meaning, by giving it a sue-and-to-be-sued clause, what other activities by the TVA would be subject to suit that would not be subject to sue under the

Ann O'Connell Adams: Any -- any of the other exceptions listed in the Federal Tort Claims Act.

So the intentional torts exception, for example, TVA doesn't assert immunity from intentional tort claims. It's just the discretionary function exception, which has this unique pedigree in the common law leading up to the enactment of the Federal Tort Claims Act that -- that TVA asserts in court.

Elena Kagan: But, Ms. O'Connell, how does that make it any different from all the agencies that are subject to the FTCA? In other words, your brief says over and over again -- and you have to say this, because we've said it would be improper simply to engraft the FTCA exception onto agencies that have been excluded from the FTCA in whole or in part. But the test that you're giving us would essentially do the exact same thing, wouldn't it? It would exempt the TVA from exactly the same suits that the TVA would be exempted from if the TVA were included in the

Ann O'Connell Adams: In terms of discretionary decision-making, yes, because that's -- but that's because the tests under the statute and the tests at common law are coterminous with one another.

Elena Kagan: Well, in terms of discretionary decision-making, what -- what would be different? I mean, what would be the consequence of the fact that Congress specifically excluded the TVA from the FTCA that's really of any meaning? I know you said that there are some procedural differences in how you bring a suit, but that's really of any meaning to anybody.

Ann O'Connell Adams: In terms of -- of discretionary decisions, there would be no difference.

Elena Kagan: Well, in terms of what would there be a difference?

Ann O'Connell Adams: Well, anything else having to do with -- with the Federal Tort Claims Act.

So if -- if your question is about why TVA was excluded, I think that's --

Elena Kagan: No, my question is what's the practical difference, given your position, that the FT -- that the TVA was excluded? What's the difference for the TV -- TVA --

Ann O'Connell Adams: Back --

Elena Kagan: -- that it was excluded?

Ann O'Connell Adams: Well, I think the -- the main reasons -- and this is described a little bit on page 42 of our brief --

Elena Kagan: Not the reasons. What's the practical consequence of being excluded?

Ann O'Connell Adams: Well, people that -- that would like to sue the TVA back in 1942, the agency would have lost settlement authority at a thousand dollars.

The -- the people would have to file a suit in federal district court and then negotiate with the Attorney General or the U.S. Attorney's Offices on terms set by Washington, D.C. There was a shorter statute of limitations.

I think, at the time that the FTCA was enacted, the TVA and legislators were concerned on the heels of the Depression about subjecting residents of the Tennessee Valley to those types of claims when they had already been interacting with the TVA for about a decade and had come to have certain rights. But discretionary-function, the ability to sue TVA for its exercise of discretion in tort claims, was not one such right.

TVA had been asserting discretionary-function immunity in the courts even before the FTCA was enacted, and it had been winning. And so, at the time TVA was excluded, you know, the legislative history of the FTCA shows that it was Congress's understanding that even if it didn't enact a statutory exception, that courts would have come to the same place by judicial construction, and there's nothing to indicate that the TVA was uniquely outside of Congress's expectation that this common law discretionary-function immunity would continue to apply.

Stephen G. Breyer: But, overall, what was it --

John G. Roberts, Jr.: Ms. Adams, I -- I'm not sure I follow the separation of powers argument.

I mean, I picked up the briefs and I'm reading along.

It says a nice statutory interpretation question, discretionary-function.

All of a sudden, it's a separation of powers case. Who -- which powers are -- I mean, the Congress is separated from Mr. Thacker's?

Ann O'Connell Adams: It's -- the separation of powers principle that's at play is -- is the one that's protected by the discretionary-function immunity historically, which is that you don't want courts second-guessing the discretionary decisions of the -- the Executive Branch.

John G. Roberts, Jr.: But -- but this wouldn't be unusual, whichever side of the case wins, that handling a tort case is -- we're not intruding upon Congress's functions. That's what we do every day.

Ann O'Connell Adams: It -- it would be -- well, intruding on the -- on the executive functions, and --

Neil Gorsuch: Well, but, Ms. Adams, on that, I was stuck where the Chief was on -- on your brief.

And are you arguing -- I -- I don't take you to be arguing, but I'm not sure -- that Congress is unable to waive sovereign immunity?

Ann O'Connell Adams: No.

Neil Gorsuch: So Congress could waive even the executive's immunity on discretionary functions?

Ann O'Connell Adams: Yes.

And the -- the question here is just whether -- whether you think Congress has done so by enacting a general sue-and-be-sued clause with all of these other indications that Congress understood that discretionary-function immunity would survive --

Neil Gorsuch: I mean, it would be perfectly sensible if Congress wanted to create, say, a cola company because it thought there wasn't sufficient competition in the soft drink industry, a true commercial entity, that it would allow suit for negligence and those -- against such an entity so that it has to internalize its costs of operation and compete on equal footing with other private commercial entities. That would be perfectly appropriate in the government's view I -- I take it?

Ann O'Connell Adams: Yes.

Neil Gorsuch: Okay.

So why isn't it a strike against your interpretation that you -- you would interpret the discretionary-function so broad as to not just encompass classic governmental decisions but really pretty ministerial commercial activity by the TVA, like raising a power line?

Ann O'Connell Adams: If there's something that's a -- that's a ministerial decision, that's going to be kicked out under the second prong or under the discretionary function.

Neil Gorsuch: But -- but the government's not -- the government would defend the judgment in this case.

Ann O'Connell Adams: Yes.

Neil Gorsuch: Okay.

Yeah.

Ann O'Connell Adams: And -- and I guess I should go back to this distinction between commercial and governmental activities. So, historically, the discretionary-function immunity protected both officers and agencies that were engaged in any function, regardless of whether it was commercial or governmental. And so there's been no distinction as this doctrine has developed between those different types of activities.

The -- the distinction seems to be coming from the Court's opinion in Burr, where the Court says it has to be a grave interference with a governmental function in order for these exceptions to apply. But we don't read Burr to actually be distinguishing between governmental and commercial activities.

It -- it used the word "governmental," but it didn't contrast it to something else that would be commercial. The issue in that case was whether an agency could be sued for garnishment of wages that it owed to an employee, and the Court said that's not the type of thing we're talking about. The agency tried to make an argument that if it had to process all these garnishment requests that would interfere with --

Samuel A. Alito, Jr.: So, basically, you're --

Elena Kagan: But, Ms. O'Connell, I -- I think --

Samuel A. Alito, Jr.: Go ahead.

Your argument is that every discretionary decision that the TVA makes in doing exactly the sort of thing that is done by a private power company is covered by sovereign immunity?

Ann O'Connell Adams: Correct.

Samuel A. Alito, Jr.: Governmental doesn't -- is not distinguished from commercial?

Ann O'Connell Adams: No.

And -- and, you know, that's -- the TVA -- this Court's cases have kind of thrown cold water on that distinction between governmental and commercial activities, so TVA is specifically authorized to build power lines, and, you know, that was one of the -- the main reasons why it was created in the 1930s, was to bring electricity to this area of the country when commercial power companies would not.

Samuel A. Alito, Jr.: So, if TVA does -- engages in an act of negligence in doing exactly the same thing that is done every day by, let's say, PEPCO, the TVA is completely immune?

Ann O'Connell Adams: If it's a -- if it involves the exercise of discretionary judgment, yes.

And that's not different from other agencies.

Neil Gorsuch: Shouldn't -- shouldn't we expect a little more clarity from Congress than that? If -- if the government wishes to compete in private industry and the commercial world, shouldn't we expect the government to make it clear that it wishes to retain its immunity a little bit more clearly than enacting a statute that says the entity may be sued?

Ann O'Connell Adams: I don't -- I don't think so.

And --

Neil Gorsuch: I mean, those are the only words we have in the statute.

You're asking us to embroider them quite a bit, aren't you?

Ann O'Connell Adams: When the Federal Tort Claims Act was enacted, the legislative history shows that Congress understood that --

Neil Gorsuch: I'm not interested in that, as you know, Ms. Adams.

Talk to me about the words.

Ann O'Connell Adams: No, I know, but the idea is that Congress brought sue-and-be-sued entities under the scope of the Federal Tort Claims Act.

And -- and the history shows that its understanding was those entities would have received discretionary-function immunity even without the statutory exception. So I don't think Congress ever drew that distinction.

And it's not just that PEPCO could put up a power line or something like that, but other government agencies do that too. The Corps of Engineers, the Bureau of Reclamation, they have -- create hydroelectric power --

Stephen G. Breyer: And the original -- the origin, the origin.

Go back for a minute, because I -- I want to see if I understand that. Before the FTCA and then after the FTCA, I thought by and large, but perhaps not correctly, that the FTCA made it easier for an injured person to sue the government compared to what happened before.

Is that right or wrong?

Ann O'Connell Adams: That's correct.

Stephen G. Breyer: So, if they exempt from the FTCA, that should, in general, make it harder to sue TVA, not easier.

And now we're bringing in an exemption you want to from -- from the FTCA which is not really clear as to what Congress intended. Now do I have the basic framework correct?

Ann O'Connell Adams: No, because while in general --

Stephen G. Breyer: Yeah.

Ann O'Connell Adams: -- the FTCA was a good thing for people and made it easier for people --

Stephen G. Breyer: Yeah.

Ann O'Connell Adams: -- to sue the federal government because there was no waiver of immunity before, in the -- in the Tennessee Valley specifically, there had been an agency operating there and interacting with people in a variety of different ways for about a decade. And so, by scooping the -- the TVA into the Federal Tort Claims Act, it -- it would actually make life harder for those people because, as I explained before, the agency loses settlement authority over a thousand dollars, there's -- there's much less discretion in how to settle the case.

Stephen G. Breyer: All right.

That's helpful.

That's helpful.

Ann O'Connell Adams: Yes.

Stephen G. Breyer: There's -- the other thing I'm not certain about is, if you look at the power industry, in selling power to customers, they're mostly government-owned, municipalities -- or there are loads of government-owned agencies. In transmission, they are by and large privately owned but highly regulated.

And with a few exceptions, the generation of power is privately owned but highly regulated, with the exception, say, of TVA, which is totally government-owned.

All right? Now I'm not sure what Congress did intend to agencies.

Well, they're not agencies.

They're private companies, but they're highly regulated companies and they do a specialized task.

Or they're governmental companies and -- and they are run by municipalities. Is there anything that will help me on that? And I do look at the legislative history.

Ann O'Connell Adams: Well, I think -- I guess the fact that Congress brought sue-and-be-sued agencies generally under the protection of the Federal Tort Claims Act shows that it didn't care what function the agency was performing, whether it was a commercial function or some, as -- as the phrase has been used, core governmental function.

They're all scooped up within the scope of the Federal Tort Claims Act. And the legislative history shows that Congress expected that those agencies would be exempted for discretionary decision-making from tort damages even without enacting the statutory exception.

Brett M. Kavanaugh: But it --

Elena Kagan: Ms. --

Brett M. Kavanaugh: But it's --

Elena Kagan: Ms. O'Connell, if -- if -- if -- if I'm a Tennessee resident and I can't sue the TVA for this conduct, for raising a transmission line negligently, what kind of negligent suit can I bring against the TVA?

Ann O'Connell Adams: I think the -- the typical example, when you have these buckets of things that are discretionary versus things that are not, the typical example of something that doesn't fall within the discretionary-function exception is you're driving down the road and a TVA truck rear-ends you.

That is a -- is a type of tort that doesn't involve any kind of exercise of discretion.

Elena Kagan: Okay.

But, with respect to the TVA's actual operations in running a power company, what kind of negligence suit can I bring?

Ann O'Connell Adams: Um --

Elena Kagan: I mean, you know, somebody rear-ending you, it's just -- it could be a TVA driver or it could be anybody else on the road.

The point is in -- in the -- in the functions that are necessary to run a power company, like raising transmission lines, doing all the things that are necessary to run a power line, what could a Tennessee citizen sue the FD -- the TVA for?

Ann O'Connell Adams: I mean, I'm -- I'm not sure that I have any examples from the case law or anything like that, but it would be similar types of things where you're -- you're walking past and something hits you or something like that, some kind of a -- a -- an action by the agency that didn't involve any discretion in deciding to take a certain action.

So it's a --

John G. Roberts, Jr.: What like if you have, you know, a fence -- you should have had a fence along one of the rivers and you don't, and so, you know, a child runs into the river and is harmed? Is that like rear-ending a -- a car?

Ann O'Connell Adams: I think under -- now, again, this is all on Question Presented 2 under which the Court did not grant cert, but I think under -- there's a case, Edwards versus TVA, where somebody tried to make a similar example, that they fell into the water near a reservoir, and they should -- there should have been a warning, and the court said no, that the -- how to warn people about the hazards and the -- you know, the economic decisions that go into where you put the signs and how you warn people and things like that involves an exercise of discretion.

Brett M. Kavanaugh: One way to look at this case is that the discretionary-function exemption does not apply because it's not statutorily provided, but, nonetheless, Burr applies in that Burr sets up what seems to me on its face to be a higher bar or a more narrower exception than the discretionary-function exception because it uses terms like "grave interference" with governmental function. What is wrong with looking at the case that way? Which would leave figuring out exactly what Burr means either to the court of appeals or future elaboration.

Ann O'Connell Adams: I -- I don't think that Burr, Justice Kavanaugh, is meant to be a replacement for the discretionary-function test.

It's not -- Burr was not a discretionary-function case.

It's not a -- a test by which you run individual sets of facts through the Burr test and decide whether or not that case can go forward.

Brett M. Kavanaugh: But, if we conclude that you don't have this discretionary-function exception because it's not provided in the statute, we're left with Burr, right?

Ann O'Connell Adams: Right.

Well --

Brett M. Kavanaugh: I know -- I know you're fighting the premise of the "if" clause, but if we conclude that, then you're left with Burr.

And how do you think Burr should be applied?

Ann O'Connell Adams: I think that Burr is what gets you to the point that you say there is a discretionary-function exception. So Burr should be a preliminary step before --

Brett M. Kavanaugh: Right.

Ann O'Connell Adams: -- discretionary-function test is applied where the court --

Brett M. Kavanaugh: So -- so you don't do it case by case.

You say to not have a discretionary-function exception would cause a grave interference with governmental function?

Ann O'Connell Adams: That's exactly right.

So that's the way that we view Burr. Burr talks in those same terms, so Burr asks whether a particular category of cases should be allowed to go forward.

It doesn't ask you to run fact patterns through the Burr test case by case. And the question in Burr, again, was whether the -- the agency, the Federal Housing Administration, was subject to garnishment. And the -- the court analyzed that question on a macro basis, not just whether paying this one garnishment order would interfere with the operations of the agency.

Elena Kagan: But, if -- if your answer to Justice Kavanaugh is right, that would mean you are engrafting the FTCA exception onto the TVA, an -- an entity that has been specifically excluded from the FTCA.

Ann O'Connell Adams: The -- the idea here is that we're -- we're not trying to borrow something from the FTCA that we were specifically excluded from.

The -- the discretionary-function immunity existed at common law and was carried forward into the Federal Tort Claims Act.

It -- they mirror one another.

And the exclusion of TVA from the Federal Tort Claimz Act doesn't abrogate that immunity that existed.

Elena Kagan: But you see what I'm saying, Ms. O'Connell.

It's that those are -- it's -- you know, you can say, well, we're -- we're -- we're formulating the result in a different way.

We're not engrafting the FTCA exception; rather, we're engrafting an exception that the FTCA codified.

But it all amounts to the same thing, doesn't it?

Ann O'Connell Adams: It all amounts to the -- to the idea that TVA gets discretionary-function immunity --

Elena Kagan: Yeah.

Ann O'Connell Adams: -- yes.

But I guess the -- the question is whether you're taking it from a statute that it's been excluded from, which, you know, we completely understand TVA's excluded from the statute, you wouldn't be saying that that -- 2680(a) applies, but that immunity was recognized as a matter of common law before the FTCA was enacted and it's -- it's coterminous with the test that's --

Stephen G. Breyer: Can I read this to --

Ann O'Connell Adams: -- that's relevant to the statute.

Stephen G. Breyer: Can I read one sentence to you that was just pointed out to me? In Prosser, on page 1053, I didn't know this, it was -- it was just pointed out, if the city operates a local electric or water company for which fees are charged, this looks very much like private enterprise and is usually considered proprietary, for torts committed in these operations then, the city is usually held liable. So that's contrary to what I was thinking before, but that's what Prosser says. And if you hold local electricity companies owned by the city liable for the distribution of electricity, why shouldn't you hold the TVA liable, at least when they're engaged in electricity distribution through wires?

Ann O'Connell Adams: I'm -- I'm not familiar --

Stephen G. Breyer: Okay.

Ann O'Connell Adams: -- with that statement from Prosser.

I don't know what it's citing to.

But, of course, TVA is the federal government that is immune from suit unless Congress waives it. And -- and, historically, there's never been a distinction drawn between commercial functions and -- and governmental functions in terms of applying the -- the discretionary-function immunity.

Sonia Sotomayor: But Burr does -- Burr itself recognizes that.

Burr says that there are some entities that are sued or to be sued that you have to look at differently because they're not functioning merely as government entities.

Ann O'Connell Adams: I -- I don't --

Sonia Sotomayor: So do you --

Ann O'Connell Adams: Respectfully, I -- I --

Sonia Sotomayor: Do you agree that Burr and the discretionary policy exception overlap in some respects?

Ann O'Connell Adams: No.

I think that Burr is a preliminary test that you use to see whether a category of claims should be excluded and the agency should get -- nevertheless get immunity, even though there is a general sue-and-be-sued clause.

Once you --

Sonia Sotomayor: And some of that has to do with governmental functions and the discretion the government has in that area?

Ann O'Connell Adams: No.

So, respectfully, I don't think Burr made that distinction.

Burr used the word "governmental functions," but it was not drawing a distinction between governmental and commercial activities.

Sonia Sotomayor: So you -- you totally give up the idea that there's any overlap between the two?

Ann O'Connell Adams: Correct.

Sonia Sotomayor: You think they're just totally --

Ann O'Connell Adams: I think Burr is a preliminary test.

Sonia Sotomayor: So, if you lose, the way Justice Kavanaugh set up the possible loss, Burr controls, you would give up any claim to discretionary function exemption, you would not claim that this interferes with the government because it cabins its discretionary function?

Ann O'Connell Adams: Well, we -- we just don't think that Burr is applied on a case-by-case basis in that way.

Sonia Sotomayor: I know, but if you're wrong, if we decide you're wrong, are you here going to disavow relying on the discretionary exemption in claiming that prong 2 is not met under Burr?

Ann O'Connell Adams: I mean, I guess we would still try to argue that, as a category of cases, if you allow -- I mean, I think that's the whole application of Burr, is whether -- I think the dispute in part is whether you look at Burr with respect to categories of cases or on a case-by-case basis.

Neil Gorsuch: Right.

But I'm -- I'm -- I'm going to try and pin you down just a little bit.

Let's assume you've lost that argument.

Okay? I -- I -- I -- I know.

Ann O'Connell Adams: So the argument I've lost is what, that there's no discretionary --

Neil Gorsuch: Is -- is -- is that Burr is just a categorical question, preliminary question, as to whether the discretionary-function exception applies. You've lost that.

Okay? Just a hypothesis. Does the government have any backup argument at all, or is that the end of it?

Ann O'Connell Adams: Well, I guess that --

Neil Gorsuch: And I'd -- and I'd really appreciate, if it's possible, to start with a yes or a no.

Ann O'Connell Adams: Yes.

I mean, I -- I think, under Burr, we would still say that, as a category of claims, that it would interfere with the -- with governmental functions or the TVA's functions to allow this category of claims to go forward.

Samuel A. Alito, Jr.: And by "this category of claim," what do you mean?

Ann O'Connell Adams: Claims that are -- tort claims for damages for activities that arise from discretionary activities of the executive.

Samuel A. Alito, Jr.: All right.

Suppose I think -- this is a similar question, maybe a little bit different -- suppose that I think what we should do is apply Burr, and suppose I think that governmental does not mean commercial, that there's a distinction between the two. How should I proceed after that, or am I just so far down the wrong road that you have nothing -- there's nothing you can do to help me? (Laughter.)

Ann O'Connell Adams: I think you're pretty far down the wrong road at that point, but I think one other thing that I guess I maybe haven't said yet is that, if you're looking whether something is -- is governmental or commercial, if it's a federal government agency doing it, it is a governmental activity. This Court has said that in a couple of different cases.

They're not discretionary-function cases, but Federal Land Bank versus the Board of County Commissioners.

Neil Gorsuch: Oh, sure, land -- federal lands, absolutely, but if -- if -- if -- if the government were setting up a cola company, why should we, with this very limited language before us, which actually seems to go the other way -- should we require Congress, if it wishes to assert sovereign immunity in cases of classic commercial conduct, like my cola company, to say so a little more clearly than this? This, after all, being go ahead and sue us.

Ann O'Connell Adams: I think if the -- if the Court is looking for something in terms of the Coca-Cola company or something that is just a purely commercial function, there may be room in prong 2 of the actual discretionary-function test for that. The discretionary-function test itself asks first whether this was an act that involved the exercise of discretion and then, second, whether it's grounded in social, economic, or political policy. So maybe the Court could say for --

Neil Gorsuch: Well, no, that would be grounded in political policy, sure, but that's my whole point of my hypothetical. Congress decided that it needed another cola company in the world, we needed one for some reason, we needed another cola company in the world.

So there's a political decision there, clearly, when Congress acts to create a commercial entity.

Ann O'Connell Adams: Well, I guess --

Neil Gorsuch: So I don't think that would solve our problem. We'd need something else, wouldn't we?

Ann O'Connell Adams: In that case, I guess the -- the TVA is obviously quite different than a Coca-Cola company.

Putting aside its power generation activities, as we've talked about for -- for much of the argument, TVA also operates a system of dams on the Tennessee River that often involved --

Neil Gorsuch: Now you're just fighting the hypothetical.

I understand you disagree with the hypothetical.

But, in that hypothetical, shouldn't we ask Congress to be a little clearer if it wants to provide immunity and allow -- I mean, actually, what we're talking about is allowing a commercial entity to externalize its costs, to the victims of its negligence, have to bear the cost, rather than internalize the cost like every other commercial operator has to bear its costs of negligence.

Ann O'Connell Adams: Well --

Neil Gorsuch: That's quite an extraordinary thing you're asking for, isn't it?

Ann O'Connell Adams: I -- I'm not sure it is.

This -- again, this is a government agency that was created to do lots of things to bring prosperity to the Tennessee Valley during the Great Depression, and one of those was to bring power and electricity to the region. It's actually statutorily mandated that it offer power to the -- to the residents of the Tennessee Valley at the lowest cost feasible.

So if -- you know, if the idea is, well, this is just a typical power company, it should internalize its costs and just raise rates, that -- that may even be inconsistent with the --

John G. Roberts, Jr.: So you're saying lowest cost feasible means, to the extent you can deprive individuals harmed by their activities, purely commercial activities, that that counts in trying to keep the costs low?

Ann O'Connell Adams: I mean, I think that's an argument.

We haven't really rolled out that argument, but it is an argument that's in the statute.

And -- and, again, I would just --

John G. Roberts, Jr.: Well, I'm not sure you haven't rolled it out.

The idea that -- that someone who's harmed, who would otherwise get a recovery from a private entity, but because of the immunity doesn't, I thought that was the basic idea.

It interferes with the governmental function to make them pay tort damages.

Ann O'Connell Adams: Well, yeah, perhaps that's right.

Maybe that's just an additional way of saying that it's inconsistent with the statutory scheme to -- to have TVA paying out damages claims and having the -- the -- the court second-guess the discretionary decisions that TVA is making.

Brett M. Kavanaugh: But the -- you're trying to fold the discretionary-function exception into the second part of Burr. But is it really the case -- I guess one response would be is it really the case that you need this broad discretionary-function exception in all these kinds of hypothetical cases that have been raised in order to avoid a grave interference for the governmental function, which seems like a high bar set forth in Burr?

Ann O'Connell Adams: Yes.

I mean, we -- again, we think that whether to recognize a discretionary-function exception is like what you're applying -- and Burr is not like a codified statute.

It's describing general categories of claims that may be excluded from a sue-and-be-sued clause even though Congress has said the agency could be sued. And -- and this is a category of claims that we think, anything involving the exercise of discretion, if you permitted suits allowing that, that it would interfere with the agency's function. So I think that's what we're asking for here, is for the Court to say that, under Burr, TVA gets discretionary-function immunity. And then, in any individual case, you could apply the discretionary-function test to see if the facts of the case meet that well-established immunity.

Elena Kagan: Just on the facts of this case, why would allowing a negligence suit to proceed interfere with important government functions?

Ann O'Connell Adams: May I answer?

John G. Roberts, Jr.: Sure.

Ann O'Connell Adams: It's -- on the facts of this case, you know, the Petitioners say, well, TVA could continue operating the next day, even if they're required to pay out damages to this particular plaintiff.

But Burr is not set up to be a case-by-case test. It's looking for categories of cases that should be excluded, just like paying out damages to one individual person whose crops were destroyed by water that was let out of the reservoir wouldn't be a big deal, but, as a category of cases, those would interfere with the government's functions.

John G. Roberts, Jr.: Thank you, Ms. Adams. Mr. Rouse, you have four minutes remaining.

Franklin Taylor Rouse: The FTCA and discretionary function analysis just don't apply to Tennessee Valley Authority.

Congress hasn't given the Tennessee Valley Authority that immunity.

It's just said the Tennessee Valley Authority may be sued, period. And so, if the TVA's going to get any immunity at all, it's going to have to meet this Court's test.

It's going to have to clearly show one of the three things that this Court has said is required. It hasn't done that.

It didn't do it below and it's not doing it now. It's instead just trying to smuggle in the discretionary analysis under Burr's constitutional scheme language.

It's trying to say, no, it would violate separation of powers. But that's not violation of separation of powers.

Not here.

Nothing here would prevent the Executive Branch from accomplishing its constitutionally-assigned functions or would be the Judiciary's impermissible trespass upon the Executive or an undertaking --

Stephen G. Breyer: What about the other sentence in Prosser: "For example, activities of police or firefighters, though tortious, are usually considered governmental, in the sense that they involve the kind of power expected of government, even if its exercise in the specific case is wrongful, the city is immune as to such activities for this reason." So Prosser seems to distinguish between what's commercial and what's basically governmental. Now they're legislating in Congress against that background.

The words are rather unclear.

Why don't we assume it picks up that background, which is where Justice Alito started?

Franklin Taylor Rouse: That -- there is certainly a distinction between governmental work, deciding where to put a dam up, and running new power lines across a line, lifting one up out of the water.

There is certainly a distinction in that. Burr accounts for them.

Burr accounts for the policy decisions, whether commercial, governmental, or not, it just accounts for the policy decisions that those can be immune, that those should be immune, that it is necessary in some circumstances to give immunity for policy decisions that -- that contemplate social, economic, or political decisions. That all exists under Burr.

But commercial conduct here that is not grounded in any of those things is not protected.

It has not been protected by Congress.

And the Court shouldn't do it again here. If there are no further questions, thank you for your time.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.