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Cunningham v. General Dynamics Information Technology, Inc.

United States District Court, E.D. Virginia, Alexandria Division

May 1, 2017

CRAIG CUNNINGHAM, on behalf of himself and others similarly situated, Plaintiff,


          Liam O'Grady United States District Judge.

         This 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.

         I. BACKGROUND

         The 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.

         In 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 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 "Modification 30").

         In the 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.

         Among 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 call.

         Pursuant 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 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 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.

         Within minutes of receiving this call, Plaintiff called the number provided and learned that GDIT was responsible for making the call.

         Plaintiff 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 similar calls.

         In 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).

         Third, 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 technology.

         Modification 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. 71-6) ...

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