Cunningham v. Lester

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

CRAIG CUNNINGHAM

:

v. : Civil Action No. DKC 18-3486

:

DEBORAH S. LESTER, et al.

:

MEMORANDUM OPINION

Presently pending and ready for resolution in this case

brought under the Telephone Consumer Protection Act (“TCPA”), 28

U.S.C. § 227, is the motion to dismiss filed by Defendants Deborah

S. Lester, Naomi E. Johnson, and Jessica Jolliffe (collectively,

the “Individual Defendants”). (ECF No. 27). The issues have been

briefed, and the court now rules, no hearing being deemed

necessary. Local Rule 105.6. For the following reasons, the

motion to dismiss will be granted.

I. Background

Unless otherwise noted, the facts outlined here are set forth

in the corrected first amended complaint and construed in the light

most favorable to Plaintiff.

In April 2013, General Dynamics Information Technology, Inc.

(“GDIT”) became party to a contract with the Center for Medicare

and Medicaid Services (“CMS”). Under that contract, GDIT was to

make calls to consumers to inform them about their ability to buy

health insurance through the exchanges created by the Affordable

Care Act (“ACA”). During the period of January 1, 2015 through

May 16, 2016, when GDIT was making the calls that form the basis

of this action, Ms. Lester served as CMS’s “Contracting Officer”

with respect to the GDIT contract, Ms. Johnson worked as the deputy

director of CMS’s Call Center Operations group, and Ms. Joliffe

worked in that same Call Center Operations group.

In December 2015, the Defendants, as employees of CMS with

responsibilities relating to the GDIT contract, instructed GDIT to

use an automatic telephone dialing system to reach consumers.

Defendants also provided a list of phone numbers and a script to

be used for prerecorded and/or artificial voice calls, or

“robocalls.” GDIT recorded the script and placed the calls, just

as it was instructed.

Among the 680,000 consumers alleged to have received calls

from GDIT was Craig Cunningham (“Mr. Cunningham” or “Plaintiff”).

The message Mr. Cunningham received stated:

Hello, this is an important message from

healthcare.gov. The deadline to enroll in a

2016 health insurance plan is coming soon.

You may be able to qualify for financial help

to make health insurance more affordable.

With financial help, most people can find

plans for $75 or less per month. Visit

healthcare.gov today to see how much you can

save. If you have questions, you can call the

health insurance marketplace to talk to a

trained enrollment specialist at 1-800-318-

2596. That’s 1-800-318-2596. We are

available 24 hours a day and the call is free.

Don’t forget, the deadline to enroll is

Tuesday, December 15. If you’ve already taken

action, and have 2016 health coverage, please

ignore this message. Thank you. Goodbye.

Mr. Cunningham did not consent to receiving this message, nor did

anyone else who received the message.

Mr. Cunningham responded by suing GDIT in the United States

District Court for the Eastern District of Virginia. Cunningham

v. Gen. Dynamic Info. Tech., Inc., no 1:16-cv-00545, 2017 WL

1682534, at *2 (E.D. Va. 2017) (“Cunningham I”). Mr. Cunningham

alleged that GDIT had violated the TCPA. The district court

dismissed for lack of subject matter jurisdiction, holding that

GDIT was immune under the “Yearsley” doctrine [Yearsley v. W.A.

Ross Const. Co., 309 U.S. 18 (1940)], which “protects federal

contractors from both state and federal causes of action . . .

[by] set[ting] forth [a] jurisdictional bar to suit.” Id. at *4.

In other words, the court dismissed Mr. Cunningham’s case because

“GDIT is entitled to sovereign immunity under Yearsley.” Id. at

*6.

Mr. Cunningham appealed, and the United States Court of

Appeals for the Fourth Circuit affirmed, holding that “the district

court did not err in treating Yearsley applicability as a

jurisdictional bar to suit and granting GDIT’s Rule 12(b)(1) motion

to dismiss on the basis that GDIT is immune from suit under the

Yearsley doctrine.” Cunningham v. Gen. Dynamics Info. Tech., Inc.,

888 F.3d 640, 651 (4th Cir. 2018) (“Cunningham II”).

After failed attempts to 1) have his case reheard en banc

and, 2) petition the United States Supreme Court for certiorari,

Mr. Cunningham filed his complaint in this action on November 13,

2018. Mr. Cunningham seeks to bring this case as a class action

on behalf of himself and all others similarly situated under rules

23(a) and 23(b)(1-3) of the Federal Rules of Civil Procedure. He

alleges that the Individual Defendants violated the TCPA by causing

GDIT to make unsolicited robocalls.

On February 26, 2019, the Individual Defendants filed a motion

to dismiss, (ECF No. 22), and on March 13, 2019, plaintiff filed

an amended complaint and a corrected first amended complaint, (ECF

Nos. 23, 24). One day later, Defendants filed this motion to

dismiss. (ECF No. 27). On May 8, Plaintiff responded in

opposition to the motion, (ECF No. 30), and on May 29, Defendants

replied with a memorandum of law in further support of their motion

to dismiss, (ECF No. 33). Plaintiff has since requested that the

court take notice of two recent Supreme Court decisions potentially

bearing on this case. (ECF Nos. 34, 35).

II. Standard of Review

A motion to dismiss for lack of subject matter jurisdiction

is governed by Federal Rule of Civil Procedure 12(b)(1).

Generally, “questions of subject matter jurisdiction must be

decided ‘first, because they concern the court’s very power to

hear the case.’” Owens–Illinois, Inc. v. Meade, 186 F.3d 435, 442

n. 4 (4th Cir.1999) (quoting 2 James Wm. Moore, et al., Moore's

Federal Practice § 12.30[1] (3d ed.1998)). The plaintiff always

bears the burden of proving that subject matter jurisdiction

properly exists in federal court. See Evans v. B.F. Perkins Co.,

a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir.1999).

In considering a Rule 12(b)(1) motion, the court “may consider

evidence outside the pleadings” to help determine whether it has

jurisdiction over the case before it. Richmond, Fredericksburg &

Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th

Cir.1991); see also Evans, 166 F.3d at 647. The court should grant

such a motion “only if the material jurisdictional facts are not

in dispute and the moving party is entitled to prevail as a matter

of law.” Richmond, 945 F.2d at 768. Because the court finds that

subject matter jurisdiction is lacking, it is not necessary to

address directly Plaintiff’s purported failure to state a claim.

III. Analysis

In their motion to dismiss, Defendants raise three arguments:

1) that “Plaintiff is Precluded from Relitigating Facts or Issues

That were Actually and Necessarily Decided in Cunningham I and

II[,]” (ECF No. 27-1, at 10),1 2) “The TCPA Does Not Provide Subject

1 Citations to page numbers in the parties’ papers are to ECF-

generated pages.

Matter Jurisdiction for Plaintiff’s Claims[,]” (Id. at 11), and 3)

“The Defendants are, Alternately, Entitled to Qualified

Immunity[,]” (Id. at 19).

A. Collateral Estoppel

Defendants first argue that under “[t]he doctrine of

collateral estoppel, a subset of res judicata,” Plaintiff is

precluded from relitigating issues previously decided in

Cunningham I and II. (ECF No. 27-1, at 10-11). Defendants suggest

that those cases held:

(1) The United States cannot be sued under the

TCPA; (2) The PPACA directs CMS to establish

a system to keep applicants informed about

their eligibility for enrollment in a

qualified health plan; 3) CMS contracted with

GDIT to carry out this statutory mandate; and

(4) CMS validly conferred the authorization

for GDIT to make the phone calls pursuant to

its statutory mandate to administer the PPACA

and keep applications [sic] informed about

their eligibility for enrollment in a

qualified health plan.

(Id. at 11). Plaintiff, however, does not actually attempt to

relitigate any of these issues in any meaningful way – at least as

those facts and issues apply to Defendants’ entitlement to

sovereign immunity. Collateral estoppel is therefore irrelevant.

B. Sovereign Immunity

The government of the United States enjoys sovereign immunity

from suit unless it expressly waives such immunity. United States

v. McLemore, 45 U.S. 286, 288 (1846). It is undisputed that the

United States has never waived its immunity to TCPA suits. See

Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016).

Campbell-Ewald and Cunningham II also establish that federal

contractors are not inevitably and unqualifiedly immune from TCPA

liability. Rather, Campbell-Ewald stands for the proposition that

“[w]hen a contractor violates both federal law and the Government’s

explicit instructions. . . no ‘derivative immunity’ shields the

contractor from suit by persons adversely affected by the

violation.” Cunningham II affirms the proposition that “there is

no liability on the part of the contractor who simply performed as

the Government directed.” Cunningham II, 888 F.3d at 646.

What is left unsaid in Cunningham II and Campbell-Ewald is

that, for the reasons discussed below, those Government agents who

do the “directing” are also immune when it comes to the TCPA,

“[f]or the sovereign can act only through agents,” Larson v.

Domestic & Foreign Commerce Corp., 337 U.S. 682, 688 (1949), and

“[a]t some level of authority, there must be an official whose

acts reflect governmental policy,” Bowen v. Watkins, 669 F.2d 979

(5th Cir. 1982).

The court’s first task is to determine whether the complaint

– despite naming Defendants in their individual capacities –

“nonetheless effectively states a claim against [the federal

government] itself.” See Martin v. Wood, 772 F.3d 192, 195-96 (4th

Cir. 2014). In other words: is Mr. Cunningham seeking to evade

the sovereign immunity bar by holding individuals responsible for

“acts [which] reflect governmental policy”?

“Resolution of this issue requires us to look beyond the form

of the complaint and the conclusory allegations against [named

Defendants] to determine who is the ‘real, substantial party in

interest.’” Id. (citing Pennhurst State Sch. & Hop. V. Halderman,

465 U.S. 89, 101 (1984)). In this analysis, Plaintiff’s recitation

of the words “individual capacity” carries little weight: “the

mere incantation of the term ‘individual capacity’ is not enough

to transform an official capacity action into an individual

capacity action.’” Lizzi v. Alexander, 255 F.3d 128, 136-37 (4th

Cir. 2001), overruled in part on other grounds by Nev. Dep’t of

Human Res. V. Hibbs, 538 U.S. 721 (2003); see also Idaho v. Coeur

d’Alene Tribe of Idaho, 521 U.S. 261, 270 (1997) (“The real

interests served by the Eleventh Amendment are not to be sacrificed

to elementary mechanics of captions and pleading.”) Rather, as

both parties agree, some deeper level of analysis is required.

Mr. Cunningham contends that the analysis is simple: “The

critical inquiry is who may be legally bound by the court’s

judgment. Because lawsuits for damages against government

employees in their individual capacities do not require actions by

the sovereign or disturb the sovereign’s property, such lawsuits

are not barred by sovereign immunity.” (ECF No. 30, at 14)

(internal citations and quotations omitted). In his view, without

proposed injunctive relief which would operate against the

government or damages that would flow directly from the public

treasury, there can be no sovereign immunity. (Id. at 14-17).

The Defendants suggest there is a bit more nuance when it

comes to determining the “real party in interest,” but essentially

agree with Plaintiff’s understanding of the law. That is,

Defendants agree that the ultimate effect on the government – be

it injunctive relief or damages – is the decisive factor.

Defendants just believe that this factor cuts the other way,

because a judgment against the Individual Defendants 1) would,

much like an injunction, effectively bar the government from using

robocalls, and 2) would therefore cause the government to pursue

a more expensive course, thus cutting into the public treasury.

(ECF No. 27-1, at 11-16).

1. Martin remains good law

In resolving this dispute, it is first necessary to analyze

whether the decision of the Supreme Court in Lewis v. Clarke, 137

S. Ct. 1285 (2017), overturned the Fourth Circuit’s decision in

Martin, 772 F.3d 192. Mr. Cunningham argues that the Court’s

latest discussion of “individual capacity” suits in Lewis v. Clarke

is the sole authority for determining who is the “real party in

interest.” In that case, the plaintiffs sued William Clarke, an

employee of the Mohegan Tribal Gaming Authority (“Gaming

Authority”), for his tortious conduct in crashing his vehicle in

the course of his employment. Id. at 1286. The Gaming Authority,

an instrumentality of the Mohegan Tribe of Indians of Connecticut

(“the Tribe”), was entitled to Tribal Immunity, a form of sovereign

immunity. Id. at 1289. The Supreme Court, however, held that

Clarke, the Tribe’s employee, was not entitled to the same

sovereign immunity for torts committed in the scope of his

employment. Id. at 1294.

Two issues were addressed in Lewis, (1) whether the tribe’s

immunity barred individual capacity claims against a tribal

employee for torts committed within the scope of their employment,

and (2) whether an indemnification clause would change the court’s

sovereign immunity analysis. After concluding that, under

ordinary analysis, the employee was the real party in interest,

and thus not entitled to sovereign immunity, the Court turned to

the indemnification clause. The Tribe had agreed to indemnify

Clarke, and this, he argued, meant that any damages he would be

forced to pay would ultimately come out of the public treasury.

For a number of reasons, the court found that “[a]n indemnification

statute such as the one at issue here does not alter the analysis.”

Id. In so doing, the Court noted that “[t]he critical inquiry is

who may be legally bound by the court’s adverse judgment, not who

will ultimately pick up the tab.” Id. at 1292-93. Because Clarke

– not the Tribe – would be legally liable, regardless of whether

the Tribe might ultimately pay him back, the suit was rightly

understood as an individual capacity suit, not as an official

capacity suit. Id.

Plaintiff suggests that because that was “the critical

inquiry” in Lewis v. Clarke, so too is it “the critical inquiry”

in this case – and, as Plaintiff would seemingly have it, in all

cases. But there is no reason to conclude that Lewis v. Clarke,

a case of first impression regarding indemnification statutes,

fundamentally altered the law of sovereign immunity.

In order to determine if sovereign immunity applies, courts

must ask whether lawsuits brought against employees “represent

only another way of pleading an action against an entity of which

an officer is an agent[.]” Kentucky v. Graham, 473 U.S. 159, 165-

66 (1985). If the court answers that question in the affirmative,

then the action is an official capacity action, and the individual

employee is entitled to sovereign immunity. Id. Who will

ultimately incur legal liability is certainly an important factor

in such an inquiry. And in cases like Lewis, where defendants try

to use indemnification unduly to expand sovereign immunity “beyond

what common-law sovereign immunity principles would recognize for

either state or federal employees,” Lewis, 137 S. Ct. at 1292, it

is indeed “the critical inquiry.”

Mr. Cunningham asserts that he “is seeking only monetary

damages against Defendants in their individual capacities,” and

that only the individual Defendants – and not the federal

government itself – would be legally bound by any ultimate judgment

of this court, thus avoiding the bar of sovereign immunity.

Plaintiff’s understanding of sovereign immunity, however, is far

too restrictive. To accept his formulation would be to create an

exception that would swallow up the rule. Sovereign immunity

“represents a real limitation on federal courts’ federal question

jurisdiction,” Couer d’Alene, 521 U.S. at 270, not just a means of

protecting the federal government from directly paying out damages

awards. Under Plaintiff’s reading of Lewis, any time the federal

government took any action that could hypothetically give rise to

a lawsuit, federal courts would always have subject matter

jurisdiction; that jurisdiction would just extend exclusively to

the agents or employees tasked with carrying out the action in

question because “the sovereign can act only through agents,”

Larson, 337 U.S. at 688. Far from serving as “a real limitation”

on federal question jurisdiction, sovereign immunity would cease

to be any limitation at all. See Lizzi, 255 F.3d at 137-38.

Lewis v. Clarke stands only for the proposition that “who may

be legally bound by the court’s adverse judgment” is “the critical

inquiry” in cases where defendants seek to extend sovereign

immunity using indemnification provisions. In other contexts,

“who may be legally bound by the court’s adverse judgment,” remains

an important piece of the analysis – but, critically, just a piece.

The Fourth Circuit’s opinion in Martin v. Wood comports

perfectly with that reading of Lewis. In Martin, the Fourth

Circuit listed “(3) would a judgment against the state officials

be institutional and official in character such that it would

operate against the State” as one of the five factors for

determining the “real, substantial party in interest.” Martin,

772 F.3d at 196 (citing Pennhurst, 465 U.S. at 108). Rather than

overturning Martin, Lewis explained a situation where one of

several factors becomes the decisive factor. That, however, is

not the situation this court is currently faced with.

2. Martin applies to the instant case

Martin v. Wood was a case under the Fair Labor Standards Act

of 1938 (“FLSA”), 29 U.S.C. §§ 201-219. There, the plaintiff, a

registered nurse formerly employed by a state-operated hospital,

sued two of her state employee supervisors for violation of the

FLSA. Martin, 772 F.3d at 193. The plaintiff there, as here,

exclusively sought damages from individual defendants. Id.

The court in Martin listed five factors for determining the

“real, substantial party in interest”:

(1) were the allegedly unlawful actions of the

state officials “tied inextricably to their

official duties,” Lizzi, 255 F.3d at 136; (2)

if the state officials had authorized the

desired relief at the outset, would the burden

have been borne by the State, cf. Pennhurst,

465 U.S. at 109 n. [1]7, 104 S.Ct. 900; (3)

would a judgment against the state officials

be “institutional and official in character,”

such that it would operate against the State,

id. at 108, 104 S.Ct. 900; (4) were the actions

of the state officials taken to further

personal interests distinct from the State’s

interests, id.; and (5) were the state

officials’ actions ultra vires, id. at 111,

104 S.Ct. 900; Lizzi, 255 F.3d at 136.

The Fourth Circuit in Martin derived a number of these factors

from an earlier case, Lizzi v. Alexander, 25 F.3d 128 (4th Cir.

2001).

Lizzi dealt with the violation of yet another federal statute,

the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et

seq. (1994). Again, the plaintiff there sought damages only from

government employees. Id. at 131. The plaintiff in Lizzi also

sought “an order prohibiting the defendants from violating the

FMLA.” Id. The Fourth Circuit noted that “[o]nly States and state

officers acting in their official capacity are immune from suits

for damages in federal court.” Id. at 136 (citing Buckhannon Board

& Home Care, Inc. v. West Virginia Dept. of Health and Human

Resources, 531 U.S. 1004) (2001)).

The complainants in Lizzi were, admittedly, either less

careful or less sophisticated than Mr. Cunningham, and opened

themselves up to certain sovereign immunity pitfalls. For one,

they sought injunctive relief. Id. at 131. For another, they

included a government entity as one of the parties, id. at 136,

perhaps alerting the court to the real party in interest. Finally,

plaintiffs in Lizzi failed to use the magic words “individual

capacity” when naming individual defendants. Id. None of these

pitfalls, however, were ultimately decisive and thus do not

meaningfully distinguish Lizzi’s analysis from that of the instant

case.

In Lizzi, the Fourth Circuit found two circumstances which

were critical to its finding that the government was the real party

in interest. First:

the allegations in the complaint recounted how

WMATA as an agency decided to fire Lizzi. Any

actions of the individual defendants were tied

inextricably to their official duties. For

example, the complaint recounted that “WMATA

told [Lizzi]” that he was under investigation

after “defendant Alexander, WMATA’s

Absenteeism Supervisor, recommended in

writing to defendant Kurtz, WMATA’s Bus

Maintenance Superintendent, that plaintiff be

terminated.” The complaint made no showing of

any ultra vires action taken by any individual

employee.

Id. Second:

To hold that individual supervisors, as

“employers,” may be sued under the statute

while also holding that the Constitution

prohibits the state itself from being sued

would undermine the Supreme Court’s decisions

in Garrett, Kimel, and Seminole Tribe.

Plaintiffs like Lizzi would easily be able to

evade the Eleventh Amendment prohibition

against suing a state merely by naming the

individual supervisor as the employer. We

refuse to create such an anomaly. The state

would still suffer the indignity of having

each discrete decision regarding personnel or

organizational matters subject to second-

guessing by a federal court. “The real

interests served by the Eleventh Amendment are

not to be sacrificed to elementary mechanics

of captions and pleadings.” Coeur d’Alene, 521

U.S. at 270, 117 S.Ct. 2028.

A rule permitting such individual liability

would do nothing more than “adhere to an empty

formalism and [would] undermine the principle,

reaffirmed ... in Seminole Tribe, that

Eleventh Amendment immunity represents a real

limitation on a federal court’s federal-

question jurisdiction.” Id. Because WMATA

enjoys Eleventh Amendment immunity for claims

brought under the FMLA, the individual

supervisors under the FMLA are protected by

that same immunity. See Beebe, 129 F.3d at

1288–89 (individual supervisors of WMATA have

immunity for alleged wrongful termination of

employee). WMATA’s Eleventh Amendment

immunity transfers to the supervisors because

the individuals were sued in their official

capacities for their official acts.

(Id. at 137-38).

The same reasoning applied in Martin, and the same reasoning

applies in the instant case. The Fourth Circuit in Martin

distilled Lizzi’s first point down to two factors: 1) were the

actions of the individual tied inextricably to their official

duties, and 2) were the government officials’ actions ultra vires.

Martin, 772 F.3d at 196.

The second point, however, applies with even greater force,

as discussed above. To put it in the terms of this case, under

Plaintiff’s reasoning, “[t]he [government] would still suffer the

indignity of having each discrete decision regarding [the TCPA]

subject to second-guessing by a federal court.” Id. Again, this

is not to say such a regime would create binding legal liability

on the government; rather, it is to say that Plaintiff’s

understanding of “real party in interest” analysis would destroy

sovereign immunity’s limitation on federal question jurisdiction.

Mr. Cunningham argues that in two post-Lewis cases, the Fourth

Circuit did not utilize the factors laid out in Martin and derived

from Lizzi. (ECF No. 30, at 17, 18 n. 2). The first of those

cases was Allen v. Cooper, 895 F.3d 337 (4th Cir. 2018). According

to Mr. Cunningham, in Allen, “the Fourth Circuit did not utilize

the Martin test to determine whether sovereign immunity barred the

portion of the lawsuit against state officials . . . Rather, the

Court went directly to discussing whether the individual

Defendants had legislative and/or qualified immunity defenses to

the lawsuit.” (ECF No. 30, at 17-18).

Plaintiff misreads the case. Far from going “directly to

discussing” personal immunities, that opinion devotes nine pages

– pages 347 to 355 – to sovereign immunity and does not discuss

Martin in the process because none of the Martin factors were at

issue. Rather, the only arguments against sovereign immunity in

Allen were whether 1) the state had waived sovereign immunity, 2)

Congress had abrogated the state’s sovereign immunity, and 3)

whether the Ex Parte Young exception to sovereign immunity applied.

Allen, 895 F.3d at 347-55.

Plaintiff next asserts, (ECF No. 30, at 18 n. 2), that in the

other post-Lewis Fourth Circuit case, Adams v. Ferguson, 884 F.3d

219 (4th Cir. 2018), the Fourth Circuit “ruled that the test was

inapplicable to the case before it.” But Adams was a 42 U.S.C. §

1983 case. As it had in Lizzi, the Fourth Circuit noted the

distinction between determining the real party in interest in §

1983 cases as opposed to cases dealing with distinct federal

statutes like the FSLA and the FMLA. Adams, 884 F.3d at 225-26;

Lizzi, 255 F.3d at 137. Specifically, in Lizzi, the court reasoned

that because “the FMLA is focused on creating a set of statutory

entitlements in its own right,” analysis of sovereign immunity in

the FMLA context had to be different from the § 1983 context

because unlike the FMLA, Ҥ 1983 is intended as a broad enforcement

vehicle to bring suit against state officials for violations of

all other federal statutory and constitutional rights. . .

Moreover, the text of the FMLA does not contain the well

established system of immunities which § 1983 defendants can

assert.” Id. See also, Buxton v. Kurtinitis, 2015 WL 3937930 at

*6 (D. Md. June 25, 2015) (noting distinction between § 1983 and

other federal statutes for purposes of sovereign immunity

analysis).

Martin is in fact the binding and decisive precedent in this

case. Unlike in Lewis, “who may be legally bound by the court’s

adverse judgment” is not “the critical inquiry.” It is one of

several inquiries, but, under the circumstances of this case, it

is not in and of itself decisive. By the same token, far from

being overturned and abrogated by Lewis, certain of the Martin

factors have magnified importance in the instant case.

3. Applying the Martin factors

Clearly the Individual Defendants’ actions were “tied

inextricably to their official duties.” To the extent there are

any specific allegations regarding Ms. Lester’s actions, they are

as follows: she “served as CMS’s ‘Contracting Officer’ with respect

to the CMS-GDIT contract[,]” and “authorized a modification to the

CMS-GDIT contract that directed GDIT to use an automatic telephone

dialing system[.]” (ECF No. 23, at 3). As a “contracting

officer,” there can be no doubt that such action was “inextricably

tied to her official duties.” As for Ms. Johnson, it is alleged

that she “supervised the employees who managed the operations of

1-800-MEDICARE and the Healthcare Marketplace Call Center.”

(Id.). Again, as the deputy director of CMS’s Call Center

Operations Group, this activity was “tied inextricably to her

official duties.” As for Ms. Jolliffe, it is only alleged that

she “worked at the CMS Call Center Operations Group.” (Id.)

The second factor is “if the state officials had authorized

the desired relief at the outset, would the burden have been borne

by the state?” In context, this factor focuses on any requested

injunctive relief, and not damages. The case cited in Martin for

this factor is Pennhurst, 463 U.S. at 109, n. 17, at which point

the Court was considering injunctive relief and whether it was

“institutional and official in character.” In this case, Mr.

Cunningham deliberately limited his “desired relief” to statutory

damages, which he seeks to be paid by the Individual Defendants.

But this factor and “desired relief” can’t be read so narrowly.

His “desired relief” clearly is a verdict finding that the use of

robocalls to implement the CMS contract violates the TCPA,

entitling him to damages. While he eschews the intent to seek an

injunction, if damages are awarded in this case, no employee of

CMS would participate in any further implementation of a contract

involving robocalls and would not participate in any such other

contract in the future. The desired relief would be the abrogation

of the contract and the cessation of robocalls.2 That burden would

fall directly on the Government.

Again, as to the third factor, the term “judgment” must be

applied logically. It is true that, despite Defendants’ arguments

to the contrary, a monetary judgment against the state officials

would not necessarily be institutional and official in nature such

that it would operate against the government. Damages would only

2 Notably, Plaintiff asserts “[u]pon information and belief,”

that such robocalls were occurring “through the date of the filing

of this First Amended Complaint[.]” (ECF No. 23, at 6). CMS

continues to use robocalls. See Ctr. For Medicare & Medicaid

Serv., Federal Health Insurance Exchange 2020 Open Enrollment,

https://www.cms.gov/newsroom/fact-sheets/federal-health-

insurance-exchange-2020-open-enrollment (last visited Jan 17,

2020). Any interference with public administration resulting from

a cessation of robocalls, then, would be real and not just

hypothetical.

be levied against the Individual Defendants. And, as we know,

indemnification would not change anything. Lewis, 137 S. Ct. at

1294. But, the Martin court cited to the same section of Pennhurst

for this factor, implying that the true impact on the government

should be assessed.

Finally, combining the last two factors, we must ask whether

the officials’ actions were either ultra vires or taken to further

personal interests as opposed to those of the government. These

factors, like the “inextricably tied to their official duties”

factor, all ask much the same question: was the official exercising

discretion to such a degree that she was acting outside her

authority, outside the duties of her job, or for herself as opposed

to her employer.

Importantly, in determining the scope of Defendants’

authority, we do not ask “did the Defendants have the authority to

direct GDIT to violate the TCPA?” Rather, we ask “did the

Defendants have the authority to instruct GDIT as to how to

communicate with customers?” On this point, Cunningham II is

instructive: there, the Fourth Circuit noted that “[t]he purpose

of Yearsley immunity is to prevent a government contractor from

facing liability for an alleged violation of law, and thus, it

cannot be that an alleged violation of law per se precludes

Yearsley immunity.” Cunningham II, 888 F.3d at 648–49. Likewise,

the purpose of “official capacity” sovereign immunity is to prevent

an official acting within his or her authority from facing

liability for an alleged violation of law, and thus, it cannot be

that an alleged violation of law per se precludes “official

capacity” sovereign immunity. Just as Cunningham II held that

“Congress had the authority to assign GDIT to complete [the] task

[of informing consumers regarding healthcare enrollment],” this

court now holds that the Individual Defendants had the authority

to instruct GDIT as to how to carry out that task.

Analysis of the Martin factors leads to the conclusion that

the real party in interest is the United States, and thus that

Individual Defendants are entitled to sovereign immunity.

Therefore, the court lacks subject matter jurisdiction to hear

this case. Because the court lacks subject matter jurisdiction,

it need not address the issue of qualified immunity nor the

arguments for dismissal based on failure to state a claim.

IV. Conclusion

For the foregoing reasons, the motion to dismiss filed by the

Individual Defendants will be granted. A separate order will

follow.

/s/

DEBORAH K. CHASANOW

United States District Judge