United States District Court, E.D. Virginia, Alexandria Division
CRAIG CUNNINGHAM, on behalf of himself and others similarly situated, Plaintiff,
GENERAL DYNAMICS INFORMATION TECHNOLOGY, INC., Defendant.
O'Grady United States District Judge.
matter comes before the Court again on Defendant General
Dynamics Information Technology, Inc.'s
("GDIT") motion to dismiss for lack of subject
matter jurisdiction. On September 9, 2016, the Court heard
oral argument on the Motion. This hearing came after an
initial round of briefing. Upon consideration of the briefs
and arguments at that time, the Court deferred ruling on
Defendant's motion, but instead allowed Plaintiff Craig
Cunningham to seek discovery on the issue of
Yearsley immunity. That discovery period is now
complete, and the parties have fully briefed the motion for
a second time. (Dkt. No. 66). The Court
dispensed with a second oral argument, and the motion is now
ripe for resolution. For the reasons that follow, the Court
hereby GRANTS GDIT's motion to dismiss.
factual details of this case were set forth in this
Court's October 18, 2016 Order (Dkt. No. 47) (hereinafter
"October Order") and will not be repeated
unnecessarily here. Nonetheless, Plaintiff has highlighted a
few additional facts that he believes are relevant to this
motion. These additional facts are included below, along with
an overview of Plaintiffs claim.
2011, the Centers for Medicare and Medicaid Services (CMS)
entered into a contract with Vangent, Inc. pursuant to
authority that was granted to CMS under the Affordable Care
Act (ACA). Under this contract, Vangent was tasked with
handling communications regarding 1-800-MEDICARE
communications, the healthcare.gov website, and the
"Healthcare Marketplace Call Center." In April of
2013, GDIT assumed Vangent's position under the contract.
See CMS-GDIT Contract, Mod. 30 at 69-70 (Dkt. No.
71-2) (hereinafter "the Contract" or
October Order, the Court noted that the "statement of
works" that GDIT submitted as evidence of the Contract
was in a "track changes" or redline format. October
Order at 9. The Court therefore determined that it could not
accept the validity of the Contract on its face. Discovery
has since confirmed that the contract is indeed valid and
authentic. See Lester Dep. I at 11:4-12, 12:2-19,
13:20-14:14-16, 15:11-12 (Dkt. No. 71-5) (explaining the
nature of Deborah Lester's authority as a contracting
officer for CMS); Lester Dep. II at 11:7-18 (Dkt. No. 71-3)
(explaining that Modification 30 was authorized in Ms,
Lester's capacity as contracting officer for CMS).
Plaintiff does not dispute the legal effect of the Contract
or its Modifications.
other things, the Contract required that GDIT make calls from
January 1, 2015 through May 16, 2016 to inform individuals
about their ability to buy health insurance through the
health insurance exchanges created by the ACA, In accordance
with this instruction, CMS (1) authorized GDIT to use an
autodialer to make calls; (2) provided a script for the
calls; and (3) provided a list of phone numbers for GDIT to
to this direction, on December 2, 2016, GDIT used an
automatic telephone dialing system to call Plaintiffs cell
phone. When Plaintiff did not pick up, a pre-recorded or
artificial voice left the following message:
Hello, this is an important message from
healthcare.gov. The deadline to enroll in a 2016
healdi insurance plan is coming soon. You may be able to
qualify for financial help to make health insurance more
affordable. With financial help, most people can find plans
for $75 or less per month. Visit healthcare.gov
today to see how much you can save. If you have questions,
you can call the health insurance marketplace to talk to a
trained enrollment specialist at 1 -800-318-2596. That's
1 -800-318-2596. We are available 24 hours a day and the call
is free. Don't forget, the deadline to enroll is Tuesday,
December 15. If you've already taken action, and have
2016 health coverage, please ignore. Thank you. Goodbye.
minutes of receiving this call, Plaintiff called the number
provided and learned that GDIT was responsible for making the
alleges that he did not consent to this call. He further
alleges that this call was made using an automatic telephone
dialing system within the meaning of the Telephone Consumer
Protection Act (TCPA) and that "thousands [of] persons
throughout the United States" received these messages.
He asserts that this is a violation of the TCPA, because it
constitutes a telemarketing or advertising call without prior
express consent, as those terms are defined in the TCPA.
Plaintiff therefore brings this claim on behalf of himself
and two separate classes of individuals who received these or
support of his position, Plaintiff now highlights a few key
terms in the Contract that he believes are relevant for the
purposes of Yearsely immunity. First, he notes that
Section 17 of the Contract required GDIT to maintain a
corporate compliance program that required internal
monitoring and auditing to "help ensure compliance with
statutes, regulations, and the company's code of business
ethics and conduct..." Modification 30 at 69-70. Second,
he stresses that the Contract does not explicitly direct GDIT
to make telephone calls without obtaining prior express
consent. See Opp'n at 5-6 (citing deposition
testimony from Naomi Johnson and Deborah Lester).
Plaintiff spends a significant amount of time discussing
Section 4.1.1 of the Contract, which instructs:
The contractor shall answer inbound calls and provide
complete responses to all telephone and TDD/TTY inquiries. If
required, the contractor shall make outbound calls to support
customer service needs. Outbound calls may include both live
CSR outbound calls as well as auto-dial message campaigns
(subject to state law) utilizing system generated call
30 at 6 (red-line format removed and emphasis added). The
deposition testimony in this case has clarified that the
"subject to state law" insertion into Modification
30 was provided in response to GDIT's concerns about
making calls in Alaska and Arizona. See Lester Dep.
II at 8:11-9:17; Bartenhagen Dep. at 79:12-80:1 (Dkt. No.