Randall F. Painter, Suing As the Administrator of the Estateof Elvon A. Painter, Deceased, Plaintiff-appellant, v. Tennessee Valley Authority et al., Defendants-appellees.fred Campbell, Suing As Admr. of the Estate of Beverlycampbell, Deceased, Plaintiff-appellant, v. Tennessee Valley Authority et al., Defendants-appellees, 476 F.2d 943 (5th Cir. 1973)

These two actions brought under the Alabama wrongful death act¹  against the Tennessee Valley Authority [TVA] were dismissed for failure to state a claim upon which relief could be granted. We affirm.

The TVA is a federally owned corporation and it is conceded to be an agency or instrumentality of the United States. Though it may sue or be sued in contract or tort,²  Congress has made no provisions allowing suit against it for punitive damages.

The plaintiffs candidly concede that pursuant to Alabama law the only damages recoverable under the wrongful death statute are punitive damages. There is no provision in Alabama law establishing a right in the decedent's survivors to recover compensatory damages for a wrongful death. Moreover, we reject the argument that the damages awarded under the statute are, regardless of the label applied by the Alabama courts, inherently compensatory to any extent. Since the objectives of punitive damage awards are totally unrelated to the purposes of compensation, it would be a mere happenstance if a verdict for punitive damages equalled compensatory damages in this cause. The purpose of this law as declared of the courts of Alabama is binding on this court. It simply will not do to allow plaintiff's to utilize Alabama's wrongful death law authorizing punitive recovery as a surrogate authority to recover compensatory damages by assuming our own view of its true purpose or measure of damages to be awarded which the statute does not authorize and Alabama courts declare is not present. See Massachusetts Bonding & Insurance Company v. United States, 352 U.S. 128, 77 S. Ct. 186, 1 L. Ed. 2d 189 (1956).

The district court concluded, on the authority of Littleton v. Vitro Corp. of America, 130 F. Supp. 774 (N.D. Ala. 1955), that the action for punitive damages would not lie against the TVA, under the established rule that punitive damages cannot be recovered from the United States or its agencies. See Missouri Pacific R. R. v. Ault, 256 U.S. 554, 41 S. Ct. 593, 65 L. Ed. 1087 (1921); Reconstruction Finance Corp. v. Texas, 229 F.2d 9 (5th Cir.), cert. denied, 351 U.S. 907, 76 S. Ct. 695, 100 L. Ed. 1442 (1956). See also Fowler v. Tennessee Valley Authority, 208 F. Supp. 828 (E.D. Tenn. 1962), aff'd on other grounds, 321 F.2d 566 (6th Cir. 1963).³ 

It is altogether anamolous that similarly situated survivors could maintain this action against the TVA under the law of practically any other state⁴  while those who have the misfortune of being relegated to the use of Alabama law are permitted no right of action at all. This lack of uniformity of tort responsibility of a federal institution based on the fortuity of geography is irrational. However, this inferior federal court has no power and declines to assume the temerity to so intrude in matters traditionally committed to the States as to declare the existence of a federal right in the survivors to recover for a decedent's death, even though the "policy . . . [of recognizing such a right] has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law." Moragne v. States Marine Lines, Inc., 398 U.S. 375, 390-391, 90 S. Ct. 1772, 1782, 26 L. Ed. 2d 339 (1970).

The aberration in such cases must find its remedy through an appropriate Congressional waiver of the TVA's immunity to punitive damages⁵  or by the creation of some uniform federal right of action, or by Alabama's amendment or reinterpretation of its law.

The decisions in these cases are in all respects

Affirmed.