collecting cases, and stating that "[t]hese decisions demonstrate that in certain limited situations the TVA is exempt from liability arising out of the exercise of certain wholly governmental functions [.]” (emphasis added)
How later courts described this case
- collecting cases, and stating that "[t]hese decisions demonstrate that in certain limited situations the TVA is exempt from liability arising out of the exercise of certain wholly governmental functions [.]” (emphasis added)
- holding that the discretionary function doctrine applies to statements made by a TVA employee regarding TVA’s power production function
- holding that statements made by a TVA employee regarding TVA’s power production were within the discretionary function doctrine
- “[I]n certain limited situations the TVA is exempt from liability arising out of the exercise of certain wholly governmental functions, where the TVA acts solely as the Government’s agent and where the United States itself would not be liable.”
Written by the judges who cited it.
The opinion
*87 MERRITT, Circuit Judge,
dissenting.
I respectfully disagree for the reasons stated in my dissenting opinion in Granger v. Merek, 583 F.2d 781, 786-87 (6th Cir. 1978). I do not believe that federal employees and agents are protected from all liability for either common law or statutory torts by the doctrine of absolute immunity. The recent case, Nixon v. Fitzgerald, —— U.S. ——, 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982), appears to overrule implicitly the doctrine of Granger holding that the qualified immunity announced in Butz v. Economou, 438 U.S. 478 , 98 S.Ct, 2894 , 57 L.Ed.2d 895 (1978), applies only to constitutional torts. In the Fitzgerald case the Supreme Court held that the President’s White House aides have only a good faith qualified immunity from liability for the violation of a federal statute. The old doctrine of absolute immunity should be declared dead except in the case of a few officials for whom there are impelling constitutional or policy reasons for such an immunity — members of Congress, judges and prosecutors and the President. This case therefore should be reversed and remanded to the District Court for application of a qualified good faith immunity to the conduct of the defendant federal officials.
Neither do I agree that TVA itself should be given an absolute immunity from liability for torts committed in its governmental capacity. Although TVA is not technically covered by the Federal Tort Claims Act, see 28 U.S.C. § 2680 (1), I would apply the Act by analogy. The Act represents the current legislative compromise on the subject of governmental liability, and I can see no reason in principle or policy why the accommodation reached in the Tort Claims Act should not apply to TVA. There is no indication that Congress intended an absolute immunity for TVA. It is unclear what rules of liability Congress intended should apply to TVA. Here therefore we must create principles of liability and immunity under the federal common law. The Tort Claims Act provides the best place to turn for an analogue. 1
Although the facts in the case before us suggest that the plaintiff would probably lose on the merits, the court disposes of the case in a way that forecloses the good case as well as the losing case. As a consequence of the rise of the administrative state during the past 50 years, business and citizens are often dependent in the first instance on federal administrative officials for the security of their property and their liberty. The federal courts provide the only effective avenue of redress for wrongs committed by these officials. Our doors should not be closed in cases of this type by doctrines of absolute immunity.
. In the instant case it would appear that the libel and slander exception to tort liability in the Act, see 28 U.S.C. § 2680 (h) would bar plaintiffs claims.