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Cunningham v. General Dynamics Information Technology, Inc.

United States Court of Appeals, Fourth Circuit

April 24, 2018

CRAIG CUNNINGHAM, on behalf of himself and all others similarly situated, Plaintiff - Appellant,
v.
GENERAL DYNAMICS INFORMATION TECHNOLOGY, INC., Defendant-Appellee.

          Argued: January 24, 2018

          Appeal 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)

         ARGUED:

          Aytan Yehoshua Bellin, BELLIN & ASSOCIATES LLC, White Plains, New York, for Appellant.

          James P. Rouhandeh, DAVIS, POLK & WARDWELL, LLP, New York, New York, for Appellee.

         ON BRIEF:

          Roger Furman, Los Angeles, California, for Appellant.

          Neil 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., for Appellee.

          Before TRAXLER and FLOYD, Circuit Judges, and SHEDD, Senior Circuit Judge.

          FLOYD, Circuit Judge:

         Greg 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).

         On 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.

         I.

         A.

         Pursuant 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).

         B.

         On appeal, we review whether the district court erred in conferring Yearsley immunity on GDIT's phone call to Cunningham.[1] 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 privacy ...


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