Opposition Brief — David Holbrook, Petitioner v. Tennessee Valley Authority, et al.

No. 22-629

In the Supreme Court of the United States

DAVID HOLBROOK, PETITIONER

v.

TENNESSEE VALLEY AUTHORITY; BVU AUTHORITY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION

DAVID B. FOUNTAIN

General Counsel

DAVID D. AYLIFFE

Director of Litigation

FRANCES REGINA KOHO

Senior Attorney

Tennessee Valley Authority

Knoxville, TN 37902

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

DANIEL TENNY

STEVEN H. HAZEL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in affirming the

dismissal of petitioner’s challenge to the resale rates set

by the Tennessee Valley Authority for the electricity

that it produces and sells in the marketplace.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 6

Conclusion ................................................................................... 17

TABLE OF AUTHORITIES

Cases:

Ashwander v. TVA, 297 U.S. 288 (1936) ............................... 2

Astra USA, Inc. v. Santa Clara Cnty.,

563 U.S. 110 (2011).................................................... 6, 13, 14

Brazos Elec. Power Co-Op., Inc. v. Southwestern

Power Admin., 819 F.2d 537 (5th Cir. 1987), reh’g

denied, 828 F.2d 1083 (5th Cir. 1987) ............................... 10

Columbus Reg’l Hosp. v. United States,

990 F.3d 1330 (Fed. Cir. 2021) ........................................... 15

Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 16

Department of Commerce v. New York,

139 S. Ct. 2551 (2019) ................................................. 5, 7, 13

Electricities of N.C., Inc. v. Southeastern Power

Admin., 774 F.2d 1262 (4th Cir. 1985) .............................. 10

Hardin v. Kentucky Utils. Co., 390 U.S. 1 (1968) .............. 11

Heckler v. Chaney, 470 U.S. 821 (1985) .............. 5, 7, 8, 10-13

Lincoln v. Vigil, 508 U.S. 182 (1993) ............................. 5, 7, 8

Matthews v. Greeneville Light & Power Sys.,

502 U.S. 938 (1991).............................................................. 14

McCarthy v. Middle Tenn. Elec. Membership Corp.,

466 F.3d 399 (6th Cir. 2006) ................................................. 9

Mobil Oil Corp. v. TVA, 387 F. Supp. 498

(N.D. Ala. 1974) ..................................................................... 9

(III)

IV

Cases—Continued:

Page

Morgan v. TVA, 115 F.2d 990 (6th Cir. 1940),

cert. denied, 312 U.S. 701 (1941) ......................................... 2

Myers v. United States, 272 U.S. 52 (1926) .......................... 2

National Veterans Legal Services Program v.

United States, 968 F.3d 1340 (Fed. Cir. 2020) ................. 16

TVA v. Hill, 437 U.S. 153 (1978) ............................................ 2

TVA v. United States EPA, 278 F.3d 1184

(11th Cir. 2002), withdrawn in part on other

grounds, TVA v. Whitman, 336 F.3d 1236

(11th Cir. 2003), cert. denied, 541 U.S. 1030 (2004) ..... 2, 17

Tennessee Elec. Power Co. v. TVA, 21 F. Supp. 947

(E.D. Tenn. 1938) .................................................................. 9

Thacker v. TVA, 139 S. Ct. 1435 (2019) ............................... 10

United States ex rel. TVA v. Welch, 327 U.S. 546

(1946) ...................................................................................... 2

Webster v. Doe, 486 U.S. 592 (1988) ........................... 6, 10, 11

Weyerhaeuser Co. v. United States Fish & Wildlife

Serv., 139 S. Ct. 361 (2018) ............................................. 7, 12

Statutes:

Act of Aug. 6, 1959, Pub. L. No. 86-137,

73 Stat. 280, 284 (1959) ....................................................... 17

Administrative Procedure Act, 5 U.S.C. 701 et seq.............. 4

5 U.S.C. 701(a)(2)..........................................5, 7, 11, 12, 14

5 U.S.C. 704 ........................................................................ 7

Tennessee Valley Authority Act of 1933,

ch. 32, 48 Stat. 58 (16 U.S.C. 831 et seq.) ............................ 2

16 U.S.C. 831 ...................................................................... 3

16 U.S.C. 831a(a)(1) ......................................................... 16

16 U.S.C. 831c .................................................................... 3

16 U.S.C. 831c(f) ................................................................ 2

16 U.S.C. 831d(l) ................................................................ 3

V

Statutes—Continued:

Page

16 U.S.C. 831i ............................................................... 3, 11

16 U.S.C. 831j ................................................ 3, 4, 8, 11, 13

16 U.S.C. 831n-4(a) .......................................................... 11

16 U.S.C. 831n-4(f) .......................................... 3, 4, 8, 9, 11

16 U.S.C. 831n-4(h) ........................................................... 3

16 U.S.C. 831dd ................................................................. 3

Miscellaneous:

Tennessee Valley Authority:

FY 2024 Budget Proposal & Management

Agenda and FY 2022 Annual Performance

Report (Mar. 9, 2023), http://www.tva.gov/cj .......... 15

Information Office, A History of the Tennessee

Valley Authority (1983), https://tva-azreastus-cdn-ep-tvawcm-prd.azureedge.net/

cdn-tvawcma/docs/default-source/abouttva/history/a-history-of-the-tennessee-valleyauthority.pdf?sfvrsn=4307c423_2 ......................... 1, 2

In the Supreme Court of the United States

No. 22-629

DAVID HOLBROOK, PETITIONER

v.

TENNESSEE VALLEY AUTHORITY; BVU AUTHORITY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-30a)

is reported at 48 F.4th 283. The opinion of the district

court (Pet. App. 31a-41a) is reported at 527 F. Supp. 3d

853.

JURISDICTION

The judgment of the court of appeals was entered on

September 7, 2022. On November 16, 2022, the Chief

Justice extended the time within which to file a petition

for a writ of certiorari to and including January 5, 2023,

and the petition was filed on that date. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1933, the Tennessee Valley region was experiencing dire economic and living conditions. See Information Office, Tennessee Valley Authority, A History

(1)

2

of the Tennessee Valley Authority 9 (1983).1 Annual per

capita income in the region was well below the national

average; prevailing agricultural practices had damaged

millions of acres of farmland and forests; the Tennessee

River was prone to flooding and was difficult to navigate

in places; and access to electricity was sparse in the region’s vast rural areas. See id. at 5, 9-10, 12, 15, 23, 45.

Against that backdrop, in the first 100 days of President

Franklin Roosevelt’s first term, Congress enacted the

Tennessee Valley Authority Act of 1933 (Act), ch. 32, 48

Stat. 58 (16 U.S.C. 831 et seq.).

The Act created the Tennessee Valley Authority

(TVA), which is “an agency of the federal government,”

Ashwander v. TVA, 297 U.S. 288, 315 (1936), and a

“wholly owned public corporation of the United States,”

TVA v. Hill, 437 U.S. 153, 157 (1978). The members of

TVA’s board of directors are appointed by the President with the advice and consent of the Senate. See 16

U.S.C. 831a(a)(1). The members of the board may be

removed “at the pleasure of the President.” TVA v.

United States EPA, 278 F.3d 1184, 1203 (11th Cir.

2002), withdrawn in part on other grounds, TVA v.

Whitman, 336 F.3d 1236 (11th Cir. 2003), cert. denied,

541 U.S. 1030 (2004); see Morgan v. TVA, 115 F.2d 990,

994 (6th Cir. 1940), cert. denied, 312 U.S. 701 (1941).

The Act also provides that a member of the board may

be removed “by a concurrent resolution of the Senate

and the House of Representatives.” 16 U.S.C. 831c(f);

but see Myers v. United States, 272 U.S. 52, 161 (1926).

TVA’s broad responsibilities “relate to navigability,

flood control, reforestation, marginal lands, and

https://tva-azr-eastus-cdn-ep-tvawcm-prd.azureedge.net/cdn-tv

awcma/docs/default-source/about-tva/history/a-history-of-the-tenn

essee-valley-authority.pdf?sfvrsn=4307c423_2.

1

3

agricultural and industrial development of the whole

Tennessee Valley.” United States ex rel. TVA v. Welch,

327 U.S. 546, 553 (1946); see, e.g., 16 U.S.C. 831, 831c,

831n-4(h), 831dd. From TVA’s earliest days, its development efforts have included constructing and operating an electric power system. The Act specifically authorizes TVA “[t]o produce, distribute, and sell electric

power,” 16 U.S.C. 831d(l), and “to sell the surplus power

not used in its operations * * * to States, counties, municipalities, corporations, partnerships, or individuals,

according to the policies” set forth in the Act, 16 U.S.C.

831i.

TVA has the authority to set the price of both the

initial sale of power and any resale by the initial purchaser. See 16 U.S.C. 831i (authorizing TVA “to include

in any contract for the sale of power such terms and conditions, including resale rate schedules, * * * as in its

judgment may be necessary or desirable for carrying

out the purposes of this chapter”). Pursuant to that authority, TVA has modified its rates over time to accommodate changing conditions. In modifying rates, the

agency distinguishes between “ ‘rate adjustment[s],’ ”

which alter the total revenue TVA’s operations produce,

and “ ‘rate change[s],’ ” which alter the rates paid by different customers “while keeping [the agency’s] overall

revenue goal the same.” Pet. App. 6a.

TVA rate-setting encompasses a variety of considerations, including the need to “produce gross revenues

sufficient to provide funds for operation, maintenance,

and administration of its power system” and “such additional margin as the Board may consider desirable.”

16 U.S.C. 831n-4(f). The Act also includes various declarations of “policy” relevant to rate-setting, e.g., 16

U.S.C. 831j, including that TVA set prices with “due

4

regard for the primary objectives of the chapter, including the objective that power shall be sold at rates as low

as are feasible,” 16 U.S.C. 831n-4(f). And the Act declares that TVA projects “shall be considered primarily

as for the benefit of the people of the section as a whole

and particularly the domestic and rural consumers to

whom the power can economically be made available,

and accordingly that sale to and use by industry shall be

a secondary purpose, to be utilized principally to secure

a sufficiently high load factor and revenue returns

which will permit domestic and rural use at the lowest

possible rates and in such manner as to encourage increased domestic and rural use of electricity.” 16 U.S.C.

831j; see Pet. 20 n.3 (noting that “load factor” refers to

utilization of existing capacity).

2. Petitioner is a residential customer of BVU Authority, a local power company that purchases power

from TVA and resells it at TVA-approved resale prices.

Pet. App. 4a-5a. Petitioner asserts that the policy declaration contained in Section 831j is “a command to the

TVA to subsidize consumers from the pockets of industry,” and he claims that various pricing decisions by

TVA since 2010 have impermissibly lowered industry

rates and raised consumer rates in contravention of that

asserted command. Id. at 2a; see id. at 7a-8a. Petitioner initiated this putative class action alleging that

TVA’s ratemaking decisions: (1) are contrary to law under the Administrative Procedure Act (APA), 5 U.S.C.

701 et seq.; (2) breach a contract between TVA and BVU

Authority that incorporates the Act’s policy declarations and that petitioner claims renders him a thirdparty beneficiary able to enforce the contract; and (3)

constitute an illegal exaction. Pet. App. 7a-8a.

5

The district court dismissed the suit. Pet. App. 31a41a. The court explained that TVA’s ratemaking decisions are “committed to agency discretion by law” and

thus unreviewable under the APA. Id. at 37a-38a (quoting 5 U.S.C. 701(a)(2)). The court further concluded

that petitioner “cannot escape dismissal” merely by reframing his APA claim as a claim for breach of contract

or illegal exaction. Id. at 40a; see id. at 40a-41a.

3. The court of appeals affirmed. Pet. App. 1a-30a.

It agreed with the district court that TVA rate-setting

is committed to agency discretion by law under Section

701(a)(2). Examining this Court’s precedents, the court

of appeals recognized that its “main task” was “to determine when there are or are not ‘judicially manageable standards’ for judging an agency’s exercise of discretion.” Id. at 11a (quoting Heckler v. Chaney, 470

U.S. 821, 830 (1985)). The court explained that identifying “manageable standards” requires a review of

whether the challenged agency decision falls within a

category of “administrative action that ‘courts traditionally have regarded as ‘committed to agency discretion,’ ’ ” id. at 13a (quoting Department of Commerce v.

New York, 139 S. Ct. 2551, 2568 (2019)), and, if so,

whether Congress has chosen to “ ‘limit an agency’s exercise’ ” of discretion “by setting guidelines or otherwise providing a limit,” id. at 14a (quoting Chaney, 470

U.S. at 833).

The court of appeals emphasized that, like other decisions committed to agency discretion, TVA’s setting of

the rates for the sale and resale of the power it produces

depends on a “complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise.” Pet. App. 16a (quoting Lincoln v. Vigil, 508 U.S.

182, 193 (1993)) (brackets in original). Consistent with

6

the discretionary character of that task, the court identified a “long tradition” “going on a century old” of courts

declining to review TVA rate-setting. Id. at 19a; see id.

at 17a-20a (collecting cases). And the court rejected petitioner’s argument that the Act circumscribes TVA’s

“traditional discretion” over its pricing decisions. Id. at

21a. The court explained that, to the contrary, Section

831j contains “general policy statement[s]” and a “mass

of discretionary lingo” that “acknowledges and accentuates [TVA’s] discretion.” Id. at 23a-24a (citing Webster

v. Doe, 486 U.S. 592, 600 (1988)).

The court of appeals also affirmed the dismissal of

petitioner’s claims for breach of contract and illegal exaction. Because the contract between TVA and BVU

Authority parrots the “statutory obligations as boilerplate,” the court held that petitioner’s “breach of contract suit alleging violation of those statutory-but-alsocontractual provisions ‘is in essence a suit to enforce the

statute itself ’ ”—“which has no private cause of action.”

Pet. App. 28a (quoting Astra USA, Inc. v. Santa Clara

Cnty., 563 U.S. 110, 118 (2011)). The court rejected the

illegal exaction claim on the grounds both that any exaction was not illegal and that, in any event, “a voluntary payment for services rendered is not an exaction,

illegal or otherwise.” Id. at 29a.

ARGUMENT

Petitioner renews his contention (Pet. 18-26) that the

TVA Act’s general declarations of policy create a judicially enforceable duty for TVA to sell electricity to residential consumers “at the lowest possible rates.” Pet.

19. The court of appeals correctly rejected that contention under well-settled precedent, and petitioner’s assertion (Pet. 20-26) that the court created a new test is

mistaken. To the extent petitioner renews his claims

7

for breach of contract and illegal exaction, see Pet. 2628, the court correctly rejected those too. And even if

petitioner’s claims had merit, review would still be unwarranted. There is no conflict in the circuits on either

the APA or exaction claim, and any nascent tension on

the contract claim, see ibid., is not ripe for this Court’s

review. The Court should deny the petition for a writ of

certiorari.

1. The courts below correctly dismissed each of petitioner’s three claims.

a. The APA generally provides for review of “final

agency action for which there is no other adequate remedy in a court.” 5 U.S.C. 704. “But before any review

at all may be had” under the APA, “a party must first

clear the hurdle of § 701(a).” Heckler v. Chaney, 470

U.S. 821, 828 (1985). As relevant here, Section 701(a)(2)

provides that review is unavailable “to the extent that

* * * agency action is committed to agency discretion

by law.” 5 U.S.C. 701(a)(2).

This Court has “read the § 701(a)(2) exception for action committed to agency discretion ‘quite narrowly, restricting it to ‘those rare circumstances where the relevant statute is drawn so that a court would have no

meaningful standard against which to judge the

agency’s exercise of discretion.’ ’ ” Department of Commerce v. New York, 139 S. Ct. 2551, 2568 (2019) (quoting

Weyerhaeuser Co. v. United States Fish & Wildlife

Serv., 139 S. Ct. 361, 370 (2018)). It has “generally limited the exception to ‘certain categories of administrative decisions that courts traditionally have regarded as

‘committed to agency discretion,’ ’ ” ibid. (quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993)), which often “involve[ ] a complicated balancing of a number of factors

8

which are peculiarly within [the agency’s] expertise,”

Chaney, 470 U.S. at 831.

Under these standards, the court of appeals correctly concluded that the nature of TVA’s decisions concerning the prices to be charged for the power it produces forecloses judicial review. Like other types of

agency decisions that the Court has found “general[ly]

unsuitab[le]” for judicial review, Chaney, 470 U.S. at

831—such as decisions not to undertake enforcement,

see ibid., or decisions to allocate funds from a lump-sum

appropriation, Lincoln, 508 U.S. at 192—TVA’s decision to set rates for electricity that it sells on the open

market implicates judgments about policy and resource

allocation that fall within the core of its discretion and

expertise. All of those decisions involve “a complicated

balancing of a number of factors which are peculiarly

within [the agency’s] expertise,” and “the ‘agency is far

better equipped than the courts to deal with the many

variables involved in the proper ordering of its priorities.’ ” Id. at 193 (quoting Chaney, 470 U.S. at 831-832).

The Act identifies a welter of policy objectives that

TVA is to balance in setting rates. Among other things,

Congress has declared that TVA should “distribute and

sell” power “equitably” among different regions. 16

U.S.C. 831j. The Act also declares a policy that sales of

electric power for industrial use are “principally to secure a sufficiently high load factor and revenue returns

which will permit domestic and rural use at the lowest

possible rates and in such manner as to encourage increased domestic and rural use of electricity.” Ibid.

More generally, the Act states that TVA should act with

“due regard for the primary objectives of the chapter,

including the objective that power shall be sold at rates

as low as are feasible.” 16 U.S.C. 831n-4(f). And

9

Congress has instructed TVA to generate “gross revenues sufficient to provide funds for operation, maintenance, and administration of its power system,” as well

as for the fulfillment of various other financial obligations. Ibid.

In balancing those objectives, TVA has developed extensive expertise in economic and technical areas, including “ ‘distributed generation, energy efficiency,

technological advances, shifts in customer behavior,’ ”

and “the interplay between price * * * and demand.”

Pet. App. 16a (citation omitted). Courts are not wellsituated to supplant that expertise as to TVA’s setting

of appropriate prices at which its own electric power

will be sold. “Setting a price is complicated, and it is not

a task on which judges are traditionally expected to be

experts.” Ibid. Even assuming petitioner were correct

(Pet. 19) that TVA must structure its operations to

lower residential consumer prices to the maximum extent practicable, achieving that goal would not be a simple matter of raising industry rates and lowering consumer rates. As petitioner observes (Pet. 20 n.3),

“[i]ncreasing ‘load factor’ might tend towards reducing

rates for industry, which can attract more industrial users and thereby reduce rates overall.”

For those reasons, and as the court of appeals explained, TVA’s determination of the prices to be

charged has traditionally been immune from judicial review. See, e.g., Mobil Oil Corp. v. TVA, 387 F. Supp.

498, 507 (N.D. Ala. 1974) (citing Tennessee Elec. Power

Co. v. TVA, 21 F. Supp. 947 (E.D. Tenn. 1938)). The

Sixth Circuit—where TVA primarily operates—has

recognized that “[a] long line of precedent exists establishing that TVA rates are not judicially reviewable.”

McCarthy v. Middle Tenn. Elec. Membership Corp.,

10

466 F.3d 399, 405 (2006) (citation omitted). Indeed, although TVA has been setting rates for nearly 90 years,

petitioner “has not provided * * * any case in which a

federal court has subjected the TVA’s ratemaking to judicial scrutiny in the way that is requested here.” Pet.

App. 18a.

That precedent accords with a broader tradition of

courts declining to review the government’s commercial

judgments. TVA’s sale of power is a “typically commercial” activity resembling that of “privately owned power

companies,” Thacker v. TVA, 139 S. Ct. 1435, 1439

(2019), and courts have repeatedly refused to review

rate-setting and related commercial choices not just by

TVA, but also by other government utilities. See Pet.

App. 19a-20a (collecting examples); see also, e.g., Electricities of N.C., Inc. v. Southeastern Power Admin.,

774 F.2d 1262, 1266 (4th Cir. 1985); Brazos Elec. Power

Co-Op., Inc. v. Southwestern Power Admin., 819 F.2d

537, 544 (5th Cir. 1987). Unlike situations in which the

government, performing a regulatory function, specifies the prices that other parties may charge for their

goods and services, see Pet. 24, when the government

sets the prices for its own goods or services in the marketplace, “it generally does not exercise its coercive

power over an individual’s liberty or property rights,

and thus does not infringe upon areas that courts often

are called upon to protect.” Chaney, 470 U.S. at 832

(emphasis omitted).

The Act’s “ ‘broad terms’ ” do not provide the clear

“legislative direction” that would be necessary to displace the discretionary character of TVA rate-setting.

Chaney, 470 U.S. at 830, 833 (citation omitted). To the

contrary, the Act “fairly exudes deference.” Pet. App.

24a (quoting Webster, 486 U.S. at 600). The Act

11

authorizes TVA to adopt such “resale rate schedules

* * * as in its judgment may be necessary or desirable

for carrying out the purposes of this chapter.” 16

U.S.C. 831i (emphasis added). That language parallels

the statute in Webster, where the Court found review

precluded by Section 701(a)(2). 486 U.S. at 600 (observing that the relevant provision “allows termination of an

Agency employee whenever the Director ‘shall deem

such termination necessary or advisable in the interests

of the United States’ * * * , not simply when the dismissal is necessary or advisable to those interests”).

Other features of the Act are to the same effect. Far

from imposing a command on TVA, Section 831j is “a

general policy statement” reflecting, at most, an “aspiration about what Congress hopes will be accomplished.” Pet. App. 23a; see 16 U.S.C. 831j (“This policy

is further declared to be that the projects herein provided for shall be considered primarily as for the benefit

of ” certain groups) (emphasis added); see also pp. 3-4,

8-9, supra (discussing broad, and sometimes conflicting,

policies enumerated in the Act). And the Act superimposes yet another layer of discretion on those policies

by hedging them with numerous qualifications. See,

e.g., 16 U.S.C. 831j (“primarily”; “economically”; “sufficiently”); 16 U.S.C. 831n-4(f) (“feasible”).

The contrast between Section 831j and adjacent provisions confirms that the Act commits TVA’s pricing decisions to its discretion. For example, a separate provision of the Act generally prohibits “TVA from expanding its sales outside ‘the area for which the Corporation

(TVA) or its distributors were the primary source of

power supply on July 1, 1957.’ ” Hardin v. Kentucky

Utils. Co., 390 U.S. 1, 2 (1968) (quoting 16 U.S.C. 831n4(a)) (brackets omitted). That provision contains “clear

12

guidelines” constraining TVA’s discretion to enter

power contracts. Chaney, 470 U.S. at 831; see Hardin,

390 U.S. at 8. The Act’s various general statements of

policy cited by petitioner do not.

Petitioner’s contrary arguments are unavailing. He

contends that the court of appeals purported to “overrul[e]” or “at least depart[ ]” from this Court’s “modern

precedent” by “erroneously substitut[ing] a new * * *

approach” for determining whether agency action is

committed to agency discretion by law under Section

701(a)(2). Pet. 20-21, 23 (capitalization and emphasis

omitted). But the court of appeals’ analysis followed

well-established precedent, and petitioner’s critique of

its supposed novelty is misplaced.

Petitioner contends that the court of appeals failed

to consider whether the Act supplies a “meaningful

standard against which to judge” TVA’s “exercise of

[its] discretion.” Pet. 22 (quoting Weyerhaeuser, 139

S. Ct. at 371-372); see Pet. 22 n.4. To the contrary, the

court stated that its “main task” was “to determine

when there are or are not ‘judicially manageable standards’ for judging an agency’s exercise of discretion.”

Pet. App. 11a. Petitioner criticizes the court for assessing whether TVA’s setting of the rates for the sale

of its own electric power “involves balancing,” Pet. 23,

but this Court has sensibly looked to the same consideration, see, e.g., Chaney, 470 U.S. at 831 (evaluating

whether the decision involved a “complicated balancing

of a number of factors”).

Petitioner further contends (Pet. 2, 22) that the court

of appeals erred in relying on “pre-APA common law”

to conclude that a “ ‘presumption of unreviewability’ attaches to certain agency decisions.” Again, that conclusion flows directly from this Court’s precedents, which

13

recognize that “certain categories of administrative decisions that courts traditionally have regarded as ‘committed to agency discretion,’ ” Department of Commerce, 139 S. Ct. at 2568 (citation omitted), are “presumptively unreviewable” under the APA—subject to

contrary direction from Congress, Chaney, 470 U.S. at

832; see id. at 833. Petitioner argues (Pet. 3) that the

court of appeals erred in allowing that presumption to

be overcome “[o]nly if mandamus lies,” but the court

never mentioned mandamus. Instead, consistent with

this Court’s cases, it recognized that “Congress may

overcome the presumption against review by providing

‘guidelines for the agency to follow in exercising its enforcement powers,’ by ‘setting substantive priorities, or

by otherwise circumscribing an agency’s power.’ ” Pet.

App. 21a (quoting Chaney, 470 U.S. at 833). The court

of appeals simply found that the “general policy statement” contained in Section 831j, id. at 23a, does not provide the requisite direction.

b. Petitioner also briefly suggests (Pet. 26-28) that

the court of appeals erred in affirming dismissal of his

claims for breach of contract and illegal exaction. At the

outset, neither claim adds anything to petitioner’s APA

claim: because the statute does not impose the “command,” Pet. App. 23a, that petitioner asserts it does, petitioner’s claims that TVA breached its contract with

BVU Authority and imposed an illegal exaction fail for

that reason alone. Regardless, the two claims also fail

on independent grounds.

The court of appeals’ contract holding turned on Astra USA, Inc. v. Santa Clara County, 563 U.S. 110

(2011), which dismissed a third-party action brought

against a pharmaceutical company that had entered a

contract with the government. Id. at 113. The Court

14

held that the third party could not enforce statutory requirements incorporated into the contract where the

statute itself provided no private cause of action. Id. at

118. Petitioner contends (Pet. 27) that Astra should not

be read to bar claims seeking to enforce contractual duties against the government, since such suits do not displace the government’s enforcement role. But Astra

does not articulate such a distinction. The third-party

suit here, as in Astra, “is in essence a suit to enforce the

statute itself,” 563 U.S. at 118, and the Astra Court

could “infer no * * * authorization [to sue] where a contract simply incorporates statutorily required terms

and otherwise fails to demonstrate any intent to allow

beneficiaries to enforce those terms,” id. at 119 n.4.

The court of appeals rested its dismissal of petitioner’s illegal-exaction claim on the commonsense

proposition that “a voluntary payment for services rendered is not an exaction, illegal or otherwise.” Pet. App.

29a. Petitioner offers no basis for doubting that conclusion.

2. Even if the decision below were incorrect, it would

not warrant this Court’s review. The Court denied review on virtually the same question presented over 30

years ago, see Matthews v. Greeneville Light & Power

Sys., 502 U.S. 938 (1991), and nothing has changed in

the intervening decades to merit a different outcome

now.

a. The decision below does not conflict with the decision of any other court of appeals. Petitioner does not

allege a conflict on the question whether TVA’s setting

of the prices at which its own power will be sold is insulated from review under Section 701(a)(2); to the contrary, the decision below is consistent with the decision

of every other court to address that issue. See Pet. App.

15

17a-18a. Petitioner suggests (Pet. 29) that the absence

of a circuit conflict is attributable to the limited scope of

TVA’s geographic jurisdiction. But TVA’s operations

extend to the Fourth, Fifth, Sixth, and Eleventh Circuits. See TVA, FY 2024 Budget Proposal & Management Agenda and FY 2022 Annual Performance Report 7 (Mar. 9, 2023).2 And petitioner cannot identify

even a single decision subjecting the setting of rates by

federal government utilities—much less such determinations by TVA—to judicial review. The problem for

petitioner is not the lack of opportunities for a circuit

conflict to develop, but the fact that the courts of appeals have consistently rejected his position.

Petitioner alleges (Pet. 27) that the court of appeals’

contract holding conflicts with the decision in Columbus

Regional Hospital v. United States, 990 F.3d 1330 (Fed.

Cir. 2021), which permitted a third-party claim to enforce statutory obligations contained in a government

contract, id. at 1347. But Columbus did not address

TVA or even government determinations concerning

prices for the sale of goods and services more generally;

instead, it dealt with the recovery of funds distributed

by the Federal Emergency Management Agency

(FEMA). Id. at 1335-1336. And unlike in Columbus,

where the class of third-party beneficiaries was not “unbounded” but rather required a case-by-case approval

of subgrantees by FEMA, id. at 1346, petitioner’s theory in this case would apparently accord a right to sue

as a third-party beneficiary on potentially every resale

purchaser of electric power sold by TVA.

In any event, to the extent there is tension between

Columbus’s reading of Astra and the reading of the

2

http://www.tva.gov/cj.

16

court of appeals in this case, that shallow, nascent tension is not ripe for this Court’s review. And this case

would be a poor vehicle for resolving that tension, since

the court of appeals’ contract holding could be affirmed

on the alternative ground that the rates in this case fell

within TVA’s statutory discretion.

Petitioner also contends that the court of appeals’ exaction holding conflicts with the decision in National

Veterans Legal Services Program v. United States, 968

F.3d 1340 (Fed. Cir. 2020), which permitted an action to

recover excessive PACER fees to proceed on a theory

of illegal exaction, id. at 1349. But National Veterans

did not directly address the question here, namely,

whether the price paid in a voluntary commercial transaction can form the basis for an illegal exaction. See

ibid. And again, the rates in this case were not illegal,

providing an alternative ground for affirmance.

b. Petitioner fails to identify any other meaningful

basis for further review. He contends that declining to

review TVA’s setting of the prices at which its power

will be sold or resold “contraven[es]” “the separationof-powers doctrine,” Pet. 30 (capitalization and emphasis omitted), but he does not identify any constitutional

provision or precedent that he believes precludes the

approach taken unanimously by federal courts since

TVA’s inception. Tellingly, petitioner presented no arguments below based on the separation of powers or the

Constitution, and the court of appeals accordingly did

not address any such arguments. See Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005) (noting this Court’s

role as “a court of review, not of first view”).

In any event, contrary to petitioner’s assertion (Pet.

31), the decision in this case does not render TVA “unaccountable.” The members of TVA’s board of directors

17

are appointed by the President with the advice and consent of the Senate, see 16 U.S.C. 831a(a)(1), and may be

removed “at the pleasure of the President,” TVA v.

United States EPA, 278 F.3d 1184, 1203 (11th Cir.

2002), withdrawn in part on other grounds, TVA v.

Whitman, 336 F.3d 1236 (11th Cir. 2003), cert. denied,

541 U.S. 1030 (2004). Moreover, Congress is free to

amend the Act at any time to impose directives on TVA.

See, e.g., Act of Aug. 6, 1959, Pub. L. No. 86-137, 73 Stat.

280, 284 (identifying additional objectives for TVA to

consider in setting rates). But despite decades of judicial decisions declining to review TVA ratemaking, Congress has never cast doubt on TVA’s discretionary authority.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DAVID B. FOUNTAIN

General Counsel

DAVID D. AYLIFFE

Director of Litigation

FRANCES REGINA KOHO

Senior Attorney

Tennessee Valley Authority

MAY 2023

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

DANIEL TENNY

STEVEN H. HAZEL

Attorneys