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Thacker v. Tennessee Valley Authority

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
17-1201	11th Cir.	Jan 14, 2019 Tr.	TBD	TBD	TBD	OT 2018

Issue: Whether the U.S. Court of Appeals for the 11th Circuit erred by using a “discretionary-function exception” derived from the Federal Tort Claims Act, from which the Supreme Court generally has declined to borrow rules, instead of the test set forth in Federal Housing Authority v. Burr when testing the immunity of governmental “sue and be sued” entities (like the Tennessee Valley Authority), to immunize the Tennessee Valley Authority from the plaintiffs’ claims.

SCOTUSblog Coverage

Argument analysis: When is the government not really the government for immunity from tort liability? (Gregory Sisk)
Argument preview: When the Tennessee Valley Authority’s activities cause personal injury, may it claim discretionary policy immunity from liability? (Gregory Sisk)
Petition of the day (Aurora Barnes)

Date	Proceedings and Orders (key to color coding)
Feb 26 2018	Petition for a writ of certiorari filed. (Response due March 29, 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.
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.
Apr 25 2018	Motion to extend the time to file a response from April 30, 2018 to May 30, 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.
May 23 2018	Motion to extend the time to file a response from May 30, 2018 to June 29, 2018, submitted to The Clerk.
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.
Jun 29 2018	Brief of respondent Tennessee Valley Authority in opposition filed.
Jul 13 2018	Reply of petitioner Gary Thacker, et ux filed.
Jul 18 2018	DISTRIBUTED for Conference of 9/24/2018.
Sep 27 2018	Petition GRANTED.
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.
Nov 13 2018	Brief of petitioners Gary Thacker, et ux filed.
Nov 19 2018	Joint appendix filed.
Nov 28 2018	SET FOR ARGUMENT ON Monday, January 14, 2019
Nov 30 2018	CIRCULATED
Dec 11 2018	Record requested from the U.S.C.A. 11th Circuit.
Dec 13 2018	Brief of respondent Tennessee Valley Authority filed. (Distributed)
Dec 18 2018	Record received from the U.S.C.A. 11th Circuit is electronic and located on PACER.
Dec 26 2018	Record from the U.S.D.C. Northern Dist. of Alabama is electronic and located on the District courts web site.
Jan 04 2019	Reply of petitioners Gary Thacker, et ux filed. (Distributed)
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.

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This Week at the Court
The Supreme Court released additional orders from the January 11 conference on Monday; the justices called for the views of the U.S. solicitor general in CSX Transportation Inc. v. Alabama Department of Revenue, Alabama Department of Revenue v. CSX Transportation Inc. and Toshiba Corp. v. Automotive Industries Pension Trust Fund.
On Tuesday, the justices released their opinions in New Prime Inc. v. Oliveira and Stokeling v. United States.
On Monday, the justices heard oral argument in Thacker v. Tennessee Valley Authority and Rimini Street Inc. v. Oracle USA Inc.
On Tuesday, the justices heard oral argument in Home Depot U.S.A. Inc. v. Jackson and Azar v. Allina Health Services.
On Wednesday, the justices heard oral argument in Knick v. Township of Scott and Tennessee Wine & Spirits Retailers Association v. Blair.
On Friday, the justices meet for their January 18 conference; John Elwood's Relist Watch compiles the petitions relisted for this conference.
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- New Prime Inc. v. Oliveira A court should determine whether the Federal Arbitration Act’s Section 1 exclusion for disputes involving the “contracts of employment” of certain transportation workers applies before ordering arbitration; here, truck driver Dominic Oliveira’s independent contractor operating agreement with New Prime Inc. falls within that exception.
- Stokeling v. United States The Armed Career Criminal Act’s elements clause encompasses a robbery offense that, like Florida’s law, requires the criminal to overcome the victim’s resistance.
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- Henry Schein Inc. v. Archer and White Sales Inc. The “wholly groundless” exception to the general rule that courts must enforce contracts that delegate threshold arbitrability questions to an arbitrator, not a court, is inconsistent with the Federal Arbitration Act and Supreme Court precedent.
- City of Escondido, California v. Emmons The U.S. Court of Appeals for the 9th Circuit failed to conduct the analysis required by Supreme Court precedents in determining whether two Escondido police officers were entitled to qualified immunity.
- Shoop v. Hill Because Danny Hill’s intellectual disability claim must be evaluated based solely on holdings of the Supreme Court that were clearly established at the time the state-court decisions were rendered, the U.S. Court of Appeals for the 6th Circuit’s reliance on Moore v. Texas -- which was handed down much later -- was plainly improper.
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Current Relists
- Altitude Express Inc. v. Zarda Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.
- Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.
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  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
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  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
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Cases argued 43

Cases decided 9

Summary reversals 2

Merits cases granted to date 73

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Jan. 2019

Su	Mo	Tu	We	Th	Fr	Sa
		1 Holiday	2	3	4 Conference	5
6	7 Orders MERCK SHARP & DOHME CORP. V. ALBRECHT (17-290) OBDUSKEY V. MCCARTHY & HOLTHUS LLP (17-1307)	8 HERRERA V. WYOMING (17-532) FOURTH ESTATE PUBLIC BENEFIT CORP. V. WALL-STREET.COM, LLC (17-571) Opinions	9 FRANCHISE TAX BOARD OF CALIFORNIA V. HYATT (17-1299)	10	11 Conference	12
13	14 Orders THACKER V. TENNESSEE VALLEY AUTHORITY (17-1201) RIMINI STREET INC. V. ORACLE USA INC. (17-1625)	15 HOME DEPOT U.S.A. INC. V. JACKSON (17-1471) AZAR V. ALLINA HEALTH SERVICES (17-1484) Opinions	16 KNICK V. TOWNSHIP OF SCOTT, PENNSYLVANIA (17-647) TENNESSEE WINE AND SPIRITS RETAILERS ASSOCIATION V. BLAIR (18-96)	17	18 Conference	19
20	21 Holiday	22 Orders	23	24	25	26
27	28	29	30	31

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Justice Sotomayor at Harvard

On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.

Peabody Award
Awarded the Peabody Award for excellence in electronic media.
Sigma Delta Chi
Awarded the Sigma Delta Chi deadline reporting award for online coverage of the Affordable Care Act decision.
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Awarded the National Press Club's Breaking News Award for coverage of the Affordable Care Act decision.
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Cases argued	43
Cases decided	9
Summary reversals	2
Merits cases granted to date	73

Thacker v. Tennessee Valley Authority

SCOTUSblog Coverage

Featured Posts

Challengers urge justices to dismiss census case after district court ruling – Amy Howe

Reargument analysis: Justices seek a “middle position” in takings litigation case – Miriam Seifter

Argument analysis: Justices have strong views about removal of class actions – Ronald Mann

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Conference of January 18, 2019

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Peabody Award

Sigma Delta Chi

National Press Club Award

Silver Gavel Award

American Gavel Award

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