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Craig Cunningham v. General Dynamics Information Technology, Inc.

Paid petition · United States Court of Appeals for the Fourth Circuit, No. 17-1592 · judgment April 24, 2018


Certiorari denied · October 29, 2018
Pre-decision estimate: 4% cert probability

Before the decision, roughly the 4.1% base rate. The model weighted this up for a circuit split argued in the petition, counsel who has filed here before, and a Fourth Circuit decision below, and down for a business respondent.

Question presented

Almost 80 years ago, in Yearsley v. W. A. Ross Const. Co., 309 U.S. 18, 21-22 (1940), under seemingly innocuous facts, this Court created a defense to liability for a private contractor who caused flood damage while building dikes as authorized by a federal statute and as directed by a federal government agency. Because the Yearsley Court did not articulate the scope of, and rationale for, the defense it created,1 the defense has become a means by which federal agencies have exonerated unlawful conduct by private contractors that now receive more than $500 billion per year to engage in an ever-growing array of tasks, ranging from running prisons to marketing private health insurance options under the Affordable Care Act. The Fourth Circuit granted a private government contractor immunity from liability in this case for violating federal laws prohibiting robocalls, presenting these questions: 1. Is the private contractor’s defense described in Yearsley a jurisdictional defense that, like the government’s sovereign immunity, may be the subject of a motion to dismiss pursuant to Fed. R. 1 E.g., Kuwait Pearls Catering Co., WLL v. Kellogg, Brown & Root Servs., Inc., 853 F.3d 173, 185 (5th Cir. 2017) (“Yearsley’s rationale is both sparse and unclear”); Adkisson v. Jacobs Engineering Group, Inc., 790 F.3d 641, 646 (6th Cir. 2015) (“Yearsley’s spare reasoning . . . creates uncertainty as to the scope of the decision”), cert. denied, 136 S. Ct. 980 (2016).

Counsel of record

For petitioner
Aytan Yehoshua Bellin
Bellin & Associates LLC

For respondent
James Paul Rouhandeh
Davis Polk and Wardwell

Case

Subject area
Economic Activity (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 1 conference

Order
Order list, October 29, 2018 · Certiorari denied

Proceedings

  1. Oct 29 2018
    Petition DENIED.
  2. Oct 03 2018
    DISTRIBUTED for Conference of 10/26/2018.
  3. Sep 28 2018
    Reply of petitioner Craig Cunningham filed.
  4. Sep 17 2018
    Brief of respondent General Dynamics Information Technology, Inc. in opposition filed.
  5. Aug 14 2018
    Petition for a writ of certiorari filed. (Response due September 17, 2018)