Craig Cunningham v. General Dynamics Information Technology, Inc.

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).