CRAIG CUNNINGHAM, on behalf of himself and all others similarly situated, Plaintiff - Appellant,
GENERAL DYNAMICS INFORMATION TECHNOLOGY, INC., Defendant-Appellee.
Argued: January 24, 2018
from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O'Grady,
District Judge. (1:16-cv-00545-LO-TCB)
Yehoshua Bellin, BELLIN & ASSOCIATES LLC, White Plains,
New York, for Appellant.
P. Rouhandeh, DAVIS, POLK & WARDWELL, LLP, New York, New
York, for Appellee.
Furman, Los Angeles, California, for Appellant.
H. MacBride, Washington, D.C., Paul S. Mishkin, DAVIS POLK
& WARDWELL LLP, New York, New York; Attison L. Barnes,
III, Stephen J. Obermeier, WILEY REIN LLP, Washington, D.C.,
TRAXLER and FLOYD, Circuit Judges, and SHEDD, Senior Circuit
Cunningham alleges that he received an autodialed,
prerecorded phone call from General Dynamics Information
Technology, Inc. ("GDIT") advertising the
commercial availability of health insurance, without having
given his prior express consent, in violation of the
Telephone Consumer Protection Act ("TCPA"). The
district court granted GDIT's motion to dismiss for lack
of subject matter jurisdiction on the ground that GDIT is
immune from suit under the Yearsley doctrine, which
immunizes government contractors from suit when the
government authorized the contractor's actions and the
government validly conferred that authorization. Yearsley
v. W. A. Ross Constr. Co., 309 U.S. 18, 20-21 (1940).
appeal, Cunningham argues that the district court erred in
conferring Yearsley immunity and consequently
dismissing the suit for three distinct reasons. First, he
asserts that the Yearsley doctrine does not apply as
a matter of law to federal claims. Next, he asserts that GDIT
fails to qualify for Yearsley immunity both because
the government did not authorize its actions and because the
authorization was not validly conferred. Finally, he asserts
that even if Yearsley immunity applies,
Yearsley is a merits defense from liability rather
than a jurisdictional immunity. We find these arguments
unpersuasive, and now affirm the district court's
dismissal for lack of subject matter jurisdiction.
to the doctrine of sovereign immunity, the United States is
immune from private civil actions absent an express waiver.
Kerns v. United States, 585 F.3d 187, 193-94 (4th
Cir. 2009) (citing United States v. Sherwood, 312
U.S. 584, 586 (1941)). Under the concept of derivative
sovereign immunity, stemming from the Supreme Court's
decision in Yearsley, 309 U.S. at 20-21, agents of
the sovereign are also sometimes protected from liability for
carrying out the sovereign's will. In re KBR, Inc.,
Burn Pit Litig., 744 F.3d 326, 341-42 (4th Cir. 2014)
(internal quotation marks omitted) (interpreting
Yearsley as recognizing that private employees
should receive immunity from suit when they perform the same
functions as government employees). This immunity derives
from " 'the government's unquestioned need to
delegate governmental functions, ' " and the
acknowledgement that "[i]mposing liability on private
agents of the government would directly impede the
significant governmental interest in the completion of its
work." Butters v. Vance Int'l, Inc., 225
F.3d 462, 466 (4th Cir. 2000) (quoting Mangold v.
Analytic Servs., Inc., 77 F.3d 1442, 1448 (4th Cir.
1996)). "[U]nder Yearsley, a government
contractor is not subject to suit if (1) the government
authorized the contractor's actions and (2) the
government 'validly conferred' that authorization,
meaning it acted within its constitutional power."
In re KBR, 744 F.3d at 342 (citing
Yearsley, 309 U.S. at 20-21).
appeal, we review whether the district court erred in
conferring Yearsley immunity on GDIT's phone
call to Cunningham. As relevant here, the Affordable Care Act
("ACA") directs the U.S. Department of Health and
Human Services, Centers for Medicare & Medicaid Services
("CMS") to establish a system to keep applicants
informed about their eligibility for enrollment in a
qualified health plan. See 42 U.S.C. §
18083(a), (b)(2), (e). CMS maintains the
HealthCare.gov website, through which individuals
may enroll for health coverage under the ACA using an online
application. The online application requires visitors to
provide their name and phone number, and accept CMS's