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Virginia resident challenges electricity rates set by Tennessee Valley Authority

Petitions of the week
A courier drops off a package at the Supreme Court

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Since its creation by Congress during the New Deal, the Tennessee Valley Authority, a quasi-governmental power company that provides electricity to rural areas in seven southeastern states, has wound up before the Supreme Court on a number of occasions – most recently in 2019. This week, we highlight cert petitions that ask the court to consider, among other things, whether federal courts can review the rates TVA charges its clients for power.

From the start, Congress granted TVA significant independence. It provides power to both individual consumers and companies at rates set by a board of (Senate-confirmed) directors and, since 2004, a chief executive officer appointed by the board. Starting in 2010, the agency introduced a series of revenue-neutral rate changes that resulted in a decrease in the amount it charges companies for power and an increase in the amount it charges individual consumers.

David Holbrook is a resident of Bristol, Virginia, whose home is powered by TVA. He sued the agency on behalf of a class of individual consumers, arguing that TVA charged them more for electricity so that it could subsidize its commercial rates in violation of the agency’s founding statute. Under that law, TVA’s services “shall be considered primarily as for the benefit of … domestic and rural consumers,” and “sale to and use by industry shall be a secondary purpose, to be utilized principally to … permit domestic and rural use at the lowest possible rates.”

The district court dismissed Holbrook’s suit, and the U.S. Court of Appeals for the 4th Circuit affirmed. Federal courts are not authorized to hear challenges to TVA’s rate-setting decisions, the 4th Circuit held. It reasoned that those decisions’ inherent complexity and the agency’s governmental underpinnings confer a “presumption of unreviewability” unless there exists a clear congressional command that courts can apply as a test, and that the language in the agency’s founding statute does not provide such a command.

In Holbrook v. Tennessee Valley Authority, Holbrook asks the justices to rule that federal courts have authority to review TVA’s rate-setting decisions. The agency’s founding statute could hardly make clearer Congress’ policy directive, he argues, and courts are well equipped to decide whether TVA’s rate changes violate that instruction. Holbrook urges the justices to reopen the federal courthouse doors because there exists no other forum to challenge the commercial decisions of this public utility.

A list of this week’s featured petitions is below:

U.S. ex rel. Sy v. Oakland Physicians Medical Center, LLC
22-571
Issue: Whether a district court may decline a discretionary extension of time to effect service and, in effect, dismiss with prejudice a relator’s individual False Claims Act retaliation claim due to the operation of the applicable statute of limitations, when it repeatedly granted the government’s requested extensions of time for the qui tam complaint to remain under seal.

Hamm v. Smith
22-580
Issue: Whether, in an Eighth Amendment method-of-execution case, an alternative method of execution is feasible and readily implemented merely because the executing state has statutorily authorized the method.

Greebel v. United States
22-583
Issue: Whether lump-sum compensatory payments to an individual, such as those made pursuant to a retirement plan, qualify as “earnings” subject to the Consumer Credit Protection Act’s garnishment limitations.

Kelley-Lomax v. City of Chicago, Illinois
22-603
Issue: Whether a municipality, consistent with the Fourth and 14th Amendments, may sell or destroy property seized for safekeeping from an arrestee, merely because the arrestee is held in custody as a pre-trial detainee for more than 30 days.

Holbrook v. Tennessee Valley Authority
22-629
Issue: Whether federal courts have authority to review the Tennessee Valley Authority’s fidelity to its enabling statute, or whether the Authority’s rate-setting is excepted from all judicial review even when it sets rates in deliberate disregard of Congress’ clearly expressed policy directive.

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