# Cunningham v. Lester

> District Court, D. Maryland · January 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10203047

## Case

- **Court:** District Court, D. Maryland
- **Decided:** January 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10203047. Public record. Not legal advice.