Todd Berman v. Pennsylvania Higher Education Assistance Agency, dba Fedloan Servicing

Derivative sovereign immunity shields a federal contractor from liability when the contractor’s action in question is authorized and directed by the Government’s explicit instructions and the authority to carry out the project was validly conferred by Congress. Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940). In CampbellEwald v. Gomez, 577 U.S. 153 (2016), the Court held that derivative sovereign immunity is a type of qualified immunity. The Questions Presented, upon the first of which the circuits are in conflict, are: W hether derivative sovereign immunity is an affirmative defense to be proven on the merits at trial. Whether the court of appeals erred in holding that Respondent was entitled to derivative sovereign immunity.