On October 29, 2018, the Supreme Court denied, without explanation, a TCPA class action plaintiff’s Petition for a Writ of Certiorari, which sought to reverse the dismissal of his case because the defendant had derivative sovereign immunity.  Cunningham v. General Dynamics Information Technology, Inc., No. 18-206.  Defendant made robocalls under a contract with the Centers for Medicare & Medicaid Services.  The robocalls were related to the Affordable Care Act and explained health insurance options to the recipients.  The plaintiff, Craig Cunningham, argued that these calls violated the TCPA because he did not provide his prior consent.

The Eastern District of Virginia granted the defendant’s motion to dismiss for lack of subject matter jurisdiction under the Yearsley doctrine, which provides derivative sovereign immunity to federal contractors who act within the scope of valid governmental authorization.  See Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940).  The Fourth Circuit affirmed.  The plaintiff made three arguments in his Petition.  First, Yearsley confers an affirmative defense, under which the defendant has the burden of proof, rather than a jurisdictional defense, under which the plaintiff has the burden of proof.  Second, Yearsley allows a federal agency to direct a contractor to violate only state laws.  Third, a federal statute’s grant of general authority to an agency to administer a program does not empower the agency to direct a contractor to violate another federal statute.