Amicus Curiae Brief — Campbell-Ewald Co. v. Gomez, 135 S. Ct. 2311 (2015) (No. 14-857)

Supreme Court brief2015

Ask Donna

What actually matters in this document.

Text

No. 14-857

—siprsna oat US. |

e.7C

AUG 3 | ih :

| OFFICE =f THES pth A

In the Supreme Court of the United States

CAMPBELL-EWALD COMPANY, PETITIONER

JOSE GOMEZ

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

BENJAMIN C. MIZER

Principal Deputy Assistant

eneral

MALCOLM L. STEWART

Deputy Solicitor General

ANTHONY A. YANG

Assistant to the Solicitor

General

MARK B. STERN

WILLIAM E. HAVEMANN

Attorneys

Department of Justice

Washington,

.C. 20530-0001

SupremeCtBriefa@ nsdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether respondent’s individual claim for dam-

ages became+ moot when petitioner offered to pay

respondent an amount greater than the maximum

damages that respondent could have obtained by liti-

gating that individual claim to judgment, and respon-

dent did not accept the offer.

2. Whether respondent’s assertion of a class claim

under Federal Rule of Civil Procedure 23 alters the

proper mootness analysis.

3. Whether petitioner was entitled to “derivative

sovereign immunity” from respondent’s suit because

respondent’s claims arose out of petitioner’s perfor-

mance of a contract with the federal government.

(I)

TABLE OF CONTENTS

Page

a ee Te 1

ITs clack aieseemnbarnpnineiaiinnnienineiatenndabeaaenenecennietiy 2

PITTI. csciinaienceninhiesouninmennsinceciielineinanmnsetnianmestntnainn 7

Argument:

I. Petitioner’s offer of judgment did not render

a sircccntenteseasceeestteninaintiinintsiitinanteninanimnnacen 10

A. Petitioner’s unaccepted settlement offer

did not render moot respondent’s individual

_——__NESREEESSSEESEIE Reeredv reer Stent oan na Teo 10

B. Under Roper, respondent would retain a

sufficient interest to pursue class certification

even if his individual claim were moot.................. 19

II. Petitioner is not entitled to “derivative sovereign

ID ciciiscusietiintianiecninsiiiniaseiincinsiiiniindanenitiaiiaenininncinmnti 23

ee iiiradateiccrinsisaiecteasictnticapisictidaennaamrnnaenicainatteniasmminieiatesinnnisiagl 32

TABLE OF AUTHORITIES

Cases:

Alabama v. North Carolina, 560 U.S. 330 (2010)............... 22.

Bais Yaakov v. ACT, Inc., No. 14-1789, 2015 WL

4979406 (1st Cir. Aug. 21, 2015) ............. cece ee eee 11

Bobby v. Bies, 556 U.S. 825 (2009)..............cceceseseeeeeeseeees 18

Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) .................. 21

Boyle v. United Techs. Corp., 487 U.S. 500 (1988)........ 29, 30

Brady v. Roosevelt Steamship Co., 317 U.S. 575

(Siri ssichiecinssisiciniieesiaeniiinseitiniaeiaiitisaniataiaaniitantiaiiianationmaniees 26, 29

California v. San Pablo & Tulare R.R., 149 U.S. 308

Eiri scarcssineuionniuiatindniidenssnahinbinisianiattaiediinbianiniiaitabesieienticnennainnnen 15, 16

Camreta v. Greene, 131 S. Ct. 2020 (2011)... cccccccesceeeees 25

Chafin v. Chafin, 133 S. Ct. Wi'T (2013)... eeccceceeeseseeeeees 10

(IIT)

Cases—Continued: Page

Chapman v. First Index, Inc., Nos. 14-2773,

14-2775, 2015 WL 4652878 (7th Cir. Aug. 6,

ITT derectreneeiceensenibanannienaubatdiiebatemnmiiadiniiteiapaicntianaNes 11,13

Decker v. Northwest Envtl. Def. Ctr., 133 8. Ct. 1326

Te 10

Deposit Guar. Natl Bank v. Roper, 445 U.S. 326

(1980) suiseniensemetetaesenimenmeniemneitnil 9, 19, 20, 21, 22

Diaz v. First Am. Home Sugere Prot. Corp.,

ig.) ee 6, 12

Eliason v. Henshaw, 17 U.S. (4 Wheat.) 225 (1819) ..... 11

FDIC v. Meyer, 510 U.S. 471 (1994) 2.0.........ccccccceceseseneesereees 25

Filarsky v. Delia, 132 S. Ct. 1657 (2012) ipianeninmatel 27

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167 (2000) ......ccecccceeseseeeereeees 10, 12, 22

Genesis HealthCare Corp. v. Symczyk, 133 S. Ct.

ET passim

Greenlaw v. United States, 554 U.S. 237 (2008)............ 18

Hooks v. Landmark Indus., Inc., No. 14-20496,

2015 WL 4760253 (5th Cir. Aug. 12, 2015) .................. 11

Illinois Cent. R.R. v. Adams, 180 U.S. 28 (1901)................ 14

KBR, Inc. v. Metzgar, 135 S. Ct. 1153 (2015) ...................... 30

Knowles v. Towa, 525 U.S. 118 (1998) ............0ecececeesereseeeneees 14

Knox v. Service Emps. Int'l Union, 132 S. Ct. 2277

EES eRe. ee ee 10

Lewis v. Continental Bank Corp., 494 U.S 472

ESSE ee Cee ok A ey ee 22

Little v. Bowers, 134 U.S. 547 (1890) .........ccccccccesseseeeeeenees oa

Marek v. Chesny, 473 U.S. 1 (1985)..........cccccscceeccesseeeeees 4

McCardle, Ex parte, 74 U.S (7 Wall.) 506 (1869) ................ 14

Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740

Cases—Continued: Page

Minneapolis & St. Louis Ry. v. Columbus Rolling

es Be Cs I icceciincininnctieniniininitniinatunceeninennisinenenes ll

Mitchell v. Forsyth, 472 U.S. 511 (1985) ...........cccccsccceseeeeseee 25

Nardone v. United States, 302 U.S. 379 (1937)............. 24

O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567

es I iceniteisiennnasinnctnncenenncinicenestnarenmnmnitipnitensmnnmueten 18

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (19965) ........ 14

Richardson v. McKnight, 521 U.S. 399 (1997) ..........c000000+ 24

Russell v. United States, 661 F.3d 1371 (Fed. Cir.

SIT aicicedhianiieeedeiicannsieainsata lila aati iipataetaeaaaiaaaaae 12

San Mateo Cnty. v. Southern Pac. R.R., 116 U.S. 138

EE 16

Sloan Shipyards Corp. v. United States Shipping

Bd. Emergency Fleet Corp., 258 U.S. 549 (1922)............. 26

Sosna v. Towa, 419 U.S. 393 (1975) ...........cc-sccsesecerersesssseeerers 20

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83

ee 14, 22

Stein v. Buccaneers Ltd. P’ship, 772 F.3d 698

Ee 12

Tanasi v. New Alliance Bank, 786 F.3d 195

(2d Cir. 2015), petition for cert. pending,

No. 15-84 (filed July 17, 2015) 0.0.0... ceceecceeeeeeeee 12, 18

Vermont Agency of Nat. Res. v. United States ex rel.

Stevens, S29 U.S. TE5 (2000) .....2.0cecececscscsvsecerecsessseresersssereres 23

Williamson Cnty. Reg Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985) .........cccccccececsseeseeeeeees 28

Wood v. Milyard, 132 S. Ct. 1826 (2012) 00.0... ccceeceeeees 14, 18

Wyatt v. Cole, 504 U.S. 158 (1992)...........c.cecececesssesseseseeeeeseees 24

Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18

Constitution, statutes and rules: Page

ili 10, 22

Suits in Admiralty Act, 46 U.S.C. 741 et seq. (1940)........... 26

Telephone Consumer Protection Act of 1991,

EEN IE REED ee a l

ER ee 2

Tenn ee 2

eee eee: 2

en aE 2

calli 23

a nC a 24

EE ne eT 30

TR eo Se RON h 2

I ical cede dest iiitiaaiailammtioati 23

Fed. R. Civ. P.:

FREE eae en Rea nae OTT Ne 14

tiated ahaa teiehnaeanismtcmmtertastiainiisinasanel 8,17, 19

I aaah tenia neice aid taaaalacinas 17

SN ae 4, 5, 6, 7, 8, 11

sie aiaes lalitaletianeinniadiaieaialesaabiiial 4, 7,13

TE 5, 7,11, 16

EEE een ee aN EE 4,11

I Osa caiomniaiiinniiinanaieibiaiies 12

Miscellaneous:

FCC:

Public Notice, 29 FCC Red. 11,268 (2014).........00.0000.....31

Public Notice, 29 FCC Red. 13,916 (2014)..................... 31

Rules and Regulations Implementing the

Telephone Consumer Protection Act of 1991,

In re, 18 FCC Red. 14,014 (2008) ..0.......ceccsseceseseseneneee 2

Vil

Miscellaneous—Continued: Page

Restatement (Second) of Agency (1958):

WH © crneennnicomusnniiotinndiaitneiamedaeneial 24, 25, 29

WAIEs 5B ccessvsenensitsoccasnnecssnmenegsunenieitesontsiieeaiiaanennieiapiiiiaiaal 24, 25, 29

2 Restatement (Third) of Agency (2006)...............:0.:c008 29

2 Restatement (First) of Contracts (1982) ............ccceeeees 13

Restatement (Second) of Contracts (1981):

WUD Ft sceussrencusonctsnssiniascssinteibadanunitaitesaiavaeiesastenindiemadiiiaiaa 16

Fie Bb cncerasssnresssnesennienecsnssantasmnncitaiantcentaattinéinineipaiinidaaemuadaiia 13

In the Supreme Court of the United States

No. 14-857

CAMPBELL-EWALD COMPANY, PETITIONER

JOSE GOMEZ

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether a defend-

ant can moot a putative class action by offering to pay

the named plaintiff the full amount of damages that

the plaintiff could obtain by successfully litigating his

individual! claim to judgment. The United States has a

significant interest in the resolution of that question.

The United States is charged with enforcing numer-

ous laws establishing private rights of action through

which individuals may seek redress in individual or

class actions. The United States is also a potential

defendant in such suits.

This case presents the further question whether a

federal contractor may be held liable for violating the

Telephone Consumer Protection Act of 1991 (TCPA),

47 U.S.C. 227, if the contractor’s allegedly unlawful

(1)

actions were taken while executing a contract with the

federal government. The United States has a sub-

stantial interest in that question, both because the

Federal Communications Commission (FCC) adminis-

ters the TCPA and because the liability of numerous

federal contractors could be affected by the Court’s

decision. '

STATEMENT

1. As relevant here, the TCPA prohibits “any per-

son” in the United States from “mak[{ing] any call

* * * using any automatic telephone dialing system”

to “any telephone number assigned to a * * * cellular

telephone service,” unless the call is made “for emer-

gency purposes” or with the “prior express consent of

the called party.” 47 U.S.C. 227(b)(1)(A)(iii). The

FCC has authority to adopt regulations implementing

Section 227(b) and to issue “rules{s] or order{s]” ad-

dressing questions arising under the Act. 47 U.S.C.

227(b)(2); see 47 U.S.C. 154(i). The FCC has con-

strued the TCPA prohibition described above as ap-

plying to both “voice calls and text calls to wireless

numbers.” Jn re Rules and Regulations Implement-

ing the Telephone Consumer Protection Act of 1991,

18 FCC Red. 14,014, 14,115 (2003). Neither party

disputes that interpretation. Pet. App. 3a.

Congress created a private right of action to re-

dress violations of Section 227(b) through damages or

injunctive relief. 47 U.S.C. 227(b)(3); see Mims v.

Arrow Fin. Servs., LLC, 132 S. Ct. 740, 745 (2012). In

such an action, the plaintiff is entitled “to recover for

actual monetary loss from such a violation, or to re-

ceive $500 in damages for each such violation, which-

ever is greater.” 47 U.S.C. 227(b)(3). A court may

treble the ddmages award if it finds that the defend-

ant violated the TCPA “willfully or knowingly.” /bid.

2. In performing a marketing contract with the

United States Navy, petitioner caused to be sent ap-

proximately 100,000 text messages. Pet. App. 2a; Pet.

5. Under that contract, petitioner was responsible for

developing and implementing a Navy recruiting cam-

paign targeting young adults. Pet. App. 2a. Although

the Navy approved the content of a text message,

ibid., it “intended the messages to be sent only to indi-

viduals who had consented or ‘opted in’ to receive

messages like the recruiting text,” id. at 4a. Con-

strued in the light most favorable to respondent (the

non-moving party), the summary-judgment evidence

indicated that “[petitioner] was not authorized to send

texts to individuals who had not opted in,” ibid., and

that petitioner had agreed “to send [the] messages

only to cellular users that had consented to solicita-

tion,” id. at 2a.

Petitioner hired a subcontractor, MindMatics, to

generate a list of opt-in recipients and send the text

message to them. Pet. App. 2a. Respondent contends

that he received a text message without his consent.

Id. at 2a-3a; J.A. 20.

3. In 2010, respondent filed this suit in federal dis-

trict court. Pet. App. 2a. His class-action complaint

(J.A. 16-24) alleged that petitioner had violated the

TCPA by sending text messages to respondent’s and

others’ cellular phones without consent. J.A. 20, 23.

The complaint asked the district court to certify a

class of all persons who had received one or more

“unauthorized text message advertisements” from

petitioner. /bid. The complaint also requested injunc-

tive relief, trebled actual and statutory damages, and

reasonable attorney’s fees and costs. J.A. 23.

Before petitioner responded to the complaint, the

parties stipulated that the class-certification-motion

deadline should be extended until after petitioner had

filed its response and respondent had received an op-

portunity to conduct precertification discovery. Pet.

App. 37a. Petitioner agreed that it would be “ineffi-

cient for the Court and the parties to expend re-

sources on class certification-related activities before

[petitioner] ha[d] responded to the Complaint and

before any threshold motions [had been] resolved.”

Ibid.

Before discovery commenced, petitioner tendered

to respondent an offer of judgment (Pet. App. 52a-

56a) under Federal Rule of Civil Procedure 68. See

Pet. App. 48a. A valid Rule 68 settlement offer must,

inter alia, propose entry of judgment for the plaintiff

on specified terms, Fed. R. Civ. P. 68(a), and may “not

implicitly or explicitly provide that the judgment not

include costs.” Marek v. Chesny, 473 U.S. 1, 6 (1985).

If the plaintiff accepts a valid Rule 68 offer within 14

days and a party “file[s] the offer and notice of ac-

ceptance” with proof of service, the district court clerk

must enter judgment accordingly. Fed. R. Civ. P

68(a). If the plaintiff does not accept the offer and

ultimately obtains a judgment no more favorable than

the offer, the plaintiff must pay the “costs” incurred

after the offer was made, including any attorney's fees

properly treated as “costs.” Fed. R. Civ. P. 68(d); see

Marek, 473 U.S. at 10-11. Rule 68 further provides

that “[aJ]n unaccepted offer is considered withdrawn,”

and that “[elvidence ofan unaccepted offer is not

admissible except in a proceeding to determine costs.”

Fed. R. Civ. P. 68(b).

Petitioner’s Rule 68 offer proposed the entry of a

district court judgment against petitioner that would

have awarded respondent (a) permanent injunctive

relief, (b) $1503 in damages for each unauthorized text

message that respondent had received, and (c) “rea-

sonable costs allowable under law.” Pet. App. 53a; see

id. at 55a-56a (proposed injunction). Petitioner’s con-

temporaneous settlement letter (id. at 57a-59a) ex-

plained that its “offer d{id] not include attorneys’

fees” requested in respondent’s complaint. /d. at 58a.

Consistent with Rule 68, the offer stated that it “shall

be deemed withdrawn unless written notice of ac-

ceptance is received within fourteen days of service.”

Id. at 54a. Because respondent failed to respond

within 14 days, the offer “lapse[d] in accordance with

its own terms.” /d. at 3a.

Petitioner then moved to dismiss the action for

want of jurisdiction, arguing that the unaccepted Rule

68 offer had rendered respondent’s claim moot. On

the same day, respondent moved for class certifica-

tion. J.A. 7-8. The district court denied petitioner’s

motion to dismiss, Pet. App. 40a-49a, and struck from

the record the offer of judgment (id. at 52a-56a) that

petitioner had filed, explaining that “Rule 68 does not

allow a party to file a Rule 68 offer unless it has been

accepted,” id. at 49a. The court deferred ruling on

class certification “until after the parties have had an

opportunity to engage in class discovery.” Jd. at 50a.

After limited discovery, petitioner moved for sum-

mary judgment, arguing that its status as a federal

contractor entitled it to “derivative sovereign immuni-

ty.” Pet. App. 30a; J.A. 11. Cf. Dist. Ct. Doc. 129

(10/31/2011) (discovery status report). The district

court granted petitioner’s motion. Pet. App. 22a-34a.

The court concluded that, “[iJnasmuch as [petitioner]

acted on behalf of the Navy, it is also immune under

the doctrine of derivative sovereign immunity estab-

lished by the Supreme Court in Yearsley v. W.A. Ross

Constr. Co., 309 U.S. 18, 21-22 [1940].” Jd. at 30a; see

id. at 30a-34a. The district court entered final judg-

ment (J.A. 14) without separately denying respond-

ent’s pending motion for class certification.

4. The court of appeals vacated and remanded.

Pet. App. la-21la. As relevant here, the court held that

petitioner’s unaccepted offer of judgment did not moot

respondent’s action, id. at 4a-7a, and that petitioner

was not entitled to “derivative sovereign immunity,”

id. at 14a-20a.'

a. The court of appeals rejected petitioner’s

mootness argument, relying on its then-recent holding

that “[aJn unaccepted Rule 68 offer that would fully

satisfy a plaintiff's claim is insufficient to render the

claim moot.” Pet. App. 5a (quoting Diaz v. First Am.

Home Buyers Prot. Corp., 732 F.3d 948, 950 (9th Cir.

2013)). The court further held that an unaccepted

' The court rejected petitioner’s remaining contentions, includ-

ing petitioner’s argument that it could not be held vicariously lia-

ble for the actions of its subcontractor. Pet. App. 10a-14a.

* In Diaz, the court of appeals noted that a majority of the Court

in Genesis HealthCare Corp. v. Symezyk, 133 S. Ct. 1523 (2013),

had reserved the question, but that four dissenting Justices and

the Solicitor General had concluded that an unaccepted offer of

judgment could not moot a plaintiff's underlying claim. 732 F.3d

at 952-953. Diaz concluded that “Justice Kagan[’s dissenting opin-

ion in Genesis HealthCare] has articulated the correct approach.”

Td. at 954; see id. at 953-955.

offer of judgment likewise does not render a class

action moot. 7d. at 5a-7a.

b. The court of appeals held that the district court

had erred by granting petitioner derivative sovereign

immunity. Pet. App. 14a-20a. The court stated that

this Court’s decision in Yearsley, which involved a

contractor whose damage-causing actions were re-

quired by its contract with the United States, was “not

applicable” because Yearsley had “established a nar-

row rule regarding claims arising out of property

damage caused by public works projects.” /d. at 15a.

SUMMARY OF ARGUMENT

I. Neither petitioner’s offer to settle this case by

paying respondent the full value of his individual

claim, nor respondent’s failure to accept that offer,

rendered this case moot.

A. Petitioner’s settlement offer did not moot re-

spondent’s individual claim. If the mere communica-

tion of a Rule 68 offer of judgment could moot a case,

the offer would foreclose the court from performing

the action—entry of judgment for the plaintiff in ac-

cordance with the offer—that Rule 68(a) mandates if

the offer is accepted. And if the mere communication

of an offer to pay the plaintiff’s individual claim in full

does not moot the case, the plaintiff’s refusal to accept

the offer cannot have that effect. Under Rule 68(b),

“(ajn unaccepted offer is considered withdrawn,” and

the plaintiff is left as before with an unsatisfied claim

that a court can redress if the claim is found to have

merit.

Although petitioner argues that respondent’s indi-

vidual claim is moot, petitioner also contends that the

district court may enter judgment in respondent’s

favor on that claim in accordance with petitioner’s

prior Rule 68 offer. That combination of arguments is

self-contradictory, because a district court that has

been divested of jurisdiction can do nothing more than

dismiss the case. Although entry of judgment in the

plaintiff’s favor is sometimes the appropriate course

of action when the defendant offers to capitulate, the

propriety of that disposition depends on the under-

standing that the offer does not render the case moot.

The nineteenth-century decisions of this Court on

which petitioner relies do not support its cause. Those

decisions address the effect of a plaintiff’s acceptance

of full payment, not the effect of an unaccepted set-

tlement offer.

If a defendant offers to surrender by agreeing to

all of the relief the plaintiff could realistically have

obtained, and if further litigation would serve no other

legitimate purpose, the court should enter judgment

for the plaintiff in accordance with the defendant’s

offer, even if the plaintiff objects. Entry of judgment

for the plaintiff, rather than dismissal of the action as

moot, is the appropriate course of action in the (pre-

sumably rare) case where the plaintiff's obstinacy or

vindictiveness prompts him to reject the defendant’s

capitulation. Entry of judgment in accordance with

petitioner’s Rule 68 offer would have been inappropri-

ate, however, under the circumstances of this case.

Petitioner’s offer to pay the full value of respondent’s

individual claim did not give respondent all that he

might have achieved by litigating the case, since entry

of judgment on those terms would have prevented

respondent from invoking the cost-sharing mecha-

nisms of Rule 23.

B. Even if the Court concludes that petitioner’s

unaccepted settlement offer mooted respondent’s indi-

vidual claim, respondent retained a litigable stake in

the question whether class certification was appropri-

ate, since certification of a class would have allowed

respondent to shift litigation costs to other class mem-

bers. That conclusion follows logically from this

Court’s decision in Deposit Guaranty National Bank

v. Roper, 445 U.S. 326 (1980), which petitioner has not

asked the Court to overrule.

II. Petitioner is not entitled to “derivative sover-

eign immunity” from respondent’s suit. This Court

has consistently held that private companies perform-

ing work for the federal government do not acquire

the government’s own immunity from suit. Those

decisions are consistent with the common-law rule

that immunities are not delegable but rather are per-

sonal to those who possess them. Individuals who

perform governmental functions may assert qualified

immunity from liability for wrongs they commit in

that capacity. But the question of qualified immunity

is not before this Court, and petitioner cites no deci-

sion in which this Court has held that a corporate

entity (as distinct from an individual) was entitled to

such immunity, let alone demonstrate that it meets the

distinct requirements of a qualified-immunity claim.

Because the United States and its agencies are not

subject to the substantive prohibitions imposed by the

TCPA, federal agencies have a “privilege” to engage

in conduct that private actors could not lawfully un-

dertake. The Navy therefore could lawfully have sent

automated recruiting text messages to unconsenting

recipients like respondent. Unlike immunities, privi-

leges have traditionally been delegable, and the Navy

might have been able to delegate to petitioner its

privilege of making such calls. The Navy did not do

so, however, but instead authorized petitioner to send

recruiting texts only to individuals who had opted in.

ARGUMENT

I. PETITIONER’S OFFER OF JUDGMENT DID NOT REN-

DER THIS CASE MOOT

A. Petitioner’s Unaccepted Settlement Offer Did Not Ren-

der Moot Respondent's Individual Claim

The court of appeals correctly held that respond-

ent’s individual TCPA claim is not moot. Neither

petitioner’s communication of a settlement offer, nor

respondent’s failure to accept that proposal, deprived

the district court of jurisdiction over that claim.

1. To establish an Article III “case” or “controversy,”

a plaintiff must show that he possessed Article ITI stand-

ing when “the action commence[d].” Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528

U.S. 167, 191 (2000) (Laidlaw). “[AJn actual controversy

must [also] be extant at all stages of review, not merely

at the time the complaint is filed.” Genesis HealthCare

Corp. v. Symezyk, 133 S. Ct. 1523, 1528 (2013) (citation

omitted). “A case becomes moot,” however, “only when

it is impossible for a court to grant any effectual relief

whatever to the prevailing party.” Decker v. Northwest

Envtl. Def. Ctr., 133 S. Ct. 1326, 1335 (2013) (quoting

Knox v. Service Emps. Int'l Union, 132 S. Ct. 2277, 2287

(2012)); accord Chafin v. Chafin, 133 S. Ct. 1017, 1023

(2013) (same). “As long as the parties have a concrete

interest, however small, in the outcome of the litigation,

the case is not moot.” Chafin, 133 S. Ct. at 1023 (citation

omitted).

A defendant’s unaccepted offer to settle a plaintiff's

claim does not render the claim moot because it does not

prevent the court from granting the plaintiff relief. This

Court has long recognized that, because “an offer * * *

imposes no obligation until it is accepted,” the offeree’s

rejection of a settlement proposal “leaves the matter as

if no offer had ever been made.” Minneapolis & St.

Louis Ry. v. Columbus Rolling Mill, 119 U.S. 149, 151

(1886); see Eliason v. Henshaw, 17 U.S. (4 Wheat.)

225, 228 (1819). Rule 68 incorporates that longstand-

ing principle. Rule 68(b) provides that “[ajJn unac-

cepted offer is considered withdrawn,” and that “[e}vi-

dence of an unaccepted offer is not admissible, except

in a proceeding to determine costs” under Rule 68(d).

The Court in Genesis HealthCare reserved the ques-

tion whether an unaccepted offer of judgment can moot

an individual plaintiff's claim. 133 S. Ct. at 1528-1529.

The government argued (id. at 1528), however, and Jus-

tice Kagan’s opinion for four dissenting Justices con-

cluded, that “an unaccepted offer of judgment cannot

moot a case.” /d. at 1533 (Kagan, J., dissenting). The

dissenting Justices explained that, if the plaintiff de-

clines such an offer, both “her interest in the lawsuit”

and “the court’s ability to grant her relief” remain as

they were before. Jbid.; see id. at 1535 (concluding that

an unaccepted settlement offer “is a legal nullity” having

no effect on a dispute’s justiciability). Since Genesis

HealthCare was decided, every court of appeals that has

resolved the issue—including the Seventh Circuit,

which overruled its earlier precedents on the ques-

tion—has held that an unaccepted offer of judgment

cannot moot a «laintiff’s claim. See Bais Yaakov v.

ACT, Inc., No. 14-1789, 2015 WL 4979406, at *5-*6

(ist Cir. Aug. 21, 2015); Hooks v. Landmark Indus.,

Inc., No. 14-20496, 2015 WL 4760253, at *3 (5th Cir.

Aug. 12, 2015); Chapman v. First Index, Inc., Nos. 14-

2773, 14-2775, 2015 WL 4652878, at *3 (7th Cir. Aug.

6, 2015) (overruling earlier Seventh Circuit decisions

by using the court’s mini-en-banc process, see 7th Cir.

R. 40(e)); Tanasi v. New Alliance Bank, 786 F.3d 195,

200 (2d Cir. 2015), petition for cert. pending, No. 15-84

(filed July 17, 2015); Stein v. Buccaneers Ltd. P’ship,

772 F.3d 698, 702-704 (11th Cir. 2014); Diaz v. First

Am. Home Buyers Prot. Corp., 732 F.3d 948, 954-955

(9th Cir. 2013).*

2. The certiorari petition frames the question pre-

sented as whether a case becomes moot “when the

plaintiff receives an offer of complete relief on his

claim.” Pet. i (emphasis added). That formulation, as

well as similar language in petitioner’s brief on the

* In Russell v. United States, 661 F.3d 1371, 1374-1375, 1377

(2011), the Federal Circuit accepted the government’s argument as

appellee that the damages claim of the named plaintiff was ren-

dered moot by the government’s tender of a check that—like its

payments to thousands of others in the putative class—covered the

full amount claimed by the plaintiff (who declined to cash the

check). The government relied on Federal Circuit precedent,

which the government has since concluded is incorrect. See U.S.

Amicus Br. at 13 n.1, Genesis HealthCare, supra (No. 11-1059).

When a plaintiff timely seeks retrospective relief for a past

wrong, the wrong has been completed by the time the claim is

filed. Any damages liability therefore is fixed and will continue

until the claim is resolved by a judgment or a settlement agree-

ment grounded, like any contract, on mutual assent.

Different considerations apply when a plaintiff seeks prospec-

tive relief for an ongoing or imminent injury caused by the defend-

ant’s challenged actions. If the defendant ceases those actions

after the suit is filed, it can terminate the underlying injury and

associated liability for prospective relief, regardless of the plain-

tiff’s consent. Yet even in that “voluntary cessation” context, the

claim for prospective relief becomes moot only if the defendant

shows that it is “absolutely clear” that the “allegedly wrongful

behavior could not reasonably be expected to recur.” Laidlaw, 528

USS. at 189-190.

merits (see; e.g., Br. 13, 16, 20, 21), suggests that this

case became moot as soon as petitioner communicated

its settlement offer. That cannot be right. If a settle-

ment offer alone could moot a claim, the district court

would lack authority to do the very thing that Rule 68(a)

requires if the plaintiff accepts the offer: enter judgment

for the plaintiff based on the parties’ agreement. See

Chapman, 2015 WL 4652878, at *3. “[N]o one thinks

(or should think) that a defendant’s offer to have the

court enter a consent decree [or judgment] renders

the litigation moot and thus prevents the injunction’ S

[or judgment’s] entry.” /bid.

In the district court, petitioner moved to dismiss

this suit on mootness grounds immediately after the

expiration of Rule 68(a)’s 14-day period for acceptance

of a defendant’s settlement offer. That timing sug-

gests that petitioner viewed respondent’s failure to

accept the settlement offer within the prescribed

period, rather than the initial communication of the

offer, as the event that rendered this case moot. But

if tendering the offer did not divest the court of juris-

diction, respondent’s subsequent failure to accept it

could not have that effect. “After the offer lapsed, just

as before, [respondent] possessed an unsatisfied claim,

which the court could redress by awarding h{im] damag-

es.” Genesis HealthCare, 133 S. Ct. at 1534 (Kagan, J

dissenting).

* Even when a plaintiff actually enters a settlement agreement

that the defendant fulfills, if the plaintiff continues to assert a

settled claim, that claim should be adjudicated against the plaintiff,

not dismissed as moot. Such a settlement gives rise to the defense

of “accord and satisfaction.” See 2 Restatement (Second) of Con-

tracts § 281 & cmt. a, at 381-382 (1981); 2 Restatement (First) of

Contracts § 417 & cmt. a, at 785-786 (1932). Entry of a consent

3. The argument that respondent’s action became

moot (either when petitioner made its settlement offer or

when respondent failed to accept it) logically implies that

the district court should have dismissed the suit, leaving

respondent -handed. “When [jurisdiction] ceases

to exist, the only function remaining to the court is that

of announcing the fact and dismissing the cause,” bé-

cause “{wlithout jurisdiction the court cannot proceed at

all.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,

94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.)

506, 614 (1869)). That disposition, which would produce

the same practical outcome as a judgment in petitioner’s

favor, obviously could not be said to “afford the plaintiff

complete relief.” Pet. Br. 20.

To avoid the strange result that would logically follow

from a finding of mootness, petitioner contends (Br. 10,

21) that a “case should be dismissed as moot” when a

defendant offers to provide complete relief, but that the

“court also has authority to dispose of the case by enter-

ing judgment according to the defendant’s offer.” That

combination of arguments is self-contradictory. Because

an event that moots a case thereby divests the district

court of jurisdiction, “entering judgment according to

the defendant’s offer of complete relief” (id. at 10)—i.e.,

entering judgment in favor of the plaintiff—is permis-

sible only if the defendant’s settlement offer does not

moot the controversy. Although entry of judgment in

judgment likewise supports a res-judicata defense. Those affirma-

tive defenses, see Fed. R. Civ. P. &c)(1), are not jurisdictional,

however, and may be forfeited if not timely asserted. See Wood v.

Milyard, 132 S. Ct. 1826, 1832 (2012); Knowles v. Iowa, 525 U.S.

113, 116 n.2 (1998); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,

231 (1995); [Ulinois Cent. R.R. v. Adams, 180 U.S. 28, 32 (1901)

(holding that “res judicata * * * [iJs not a question affecting the

jurisdiction of th{e] court”) (citation omitted).

the plaintiff's favor is sometimes the appropriate

course of action when a defendant offers to capitulate

(see pp. 17-18, infra), that is not the disposition that

petitioner requested in the courts below. Nor is peti-

tioner’s current advocacy of that disposition fairly

encompassed within the first question presented in

the certiorari petition, which asks “[wJhether a case

becomes moot, and thus beyond the judicial power of

Article III, when the plaintiff receives an offer of

complete relief on his claim.” Pet. i (emphasis add-,

ed).

4. Petitioner relies (Br. 16-18) on three nineteenth-

century decisions of this Court. None suggests that an

unaccepted settlement offer of complete relief moots the

underlying claim.

In California v. San Pablo & Tulare Railroad, 149

U.S. 308, 308-309 (1893), California brought suit to re-

cover state and county taxes from a railroad. The State

asserted that it had not “accepted” the railroad’s offer of

a sum that was “equal to the [unpaid] taxes, penalties,

interest, and attorney’s fees * * * and costs” that the

State sought. Jd. at 311-312. The railroad had already

paid that sum to the State, however, under a California

statute that effectively accepted the railroad’s payment

* Petitioner indicates that, even if respondent’s suit is dismissed

as moot, petitioner intends to pay respondent in accordance with

petitioner’s prior settlement offer. Pet. Br. 22 n.6. We do not

question the sincerity of that representation. If the suit is dis-

missed as moot, however, any such payment would be legally

gratuitous, since (a) the legal effect of a mootness dismissal is that

the plaintiff is entitled to nothing, and (b) petitioner’s settlement

offer was “withdrawn” by its own terms when respondent did not

accept it within 14 days, see Pet. App. 54a. Petitioner’s stated

intent to make a legally gratuitous payment if the suit is dismissed

cannot divest respondent of his practical stake in the litigation.

on the State’s behalf. See id. at 312. Pursuant to state

law, the railroad had deposited that payment into a Cali-

fornia bank in the State’s name and had provided notice

thereof to the State. /bid.

In dismissing the writ of error, the Court explained

that any obligation of the railroad to pay the State had

been “extinguished” by the railroad’s deposit, which

under state law “ha[d] the same effect as actual payment

and receipt of the money” by the State. San Pablo, 149

U.S. at 313-314. The Court concluded that the State’s

“cause of action ha[d] ceased to exist,” id. at 313, because

the State had “obtained everything that it could recover

in th{e] case,” id. at 314. That disposition reflects that a

State may be required by its own governing law to ac-

cept a proffered payment settling a claim. A similar

principle might apply more broadly if the normal con-

tract-law principle of mutual assent, 1 Restatement

(Second) of Contracts § 18, at 53 (1981), were dis-

placed by a statute requiring a private plaintiff to accept

a defendant’s full payment of a disputed sum. Such a

principle would be inapplicable here, however, because

Rule 68 specifies that “an unaccepted offer is considered

withdrawn.” Fed. R. Civ. P. 68(b).

San Mateo County v. Southern Pacific Railroad, 116

U.S. 138 (1885), is even further afield. In San Mateo, the

County accepted two payments from the defendant

railroad. /d. at 138-139, 141. Because the two payments

taken together exceeded the “entire sum estimated by

the [County] to be due,” id. at 141, this Court held that

“the debt for which the suit was brought ha[d] been

unconditionally paid and satisfied,” so that the plaintiff

county “no longer [had] an existing cause of action.” Jd.

at 141-142. Although San Mateo reflects that a plain-

tiffs actual acceptance of full payment can extinguish a

claim, the decision does not address the effect of a cde-

clined settlement offer.

Little v. Bowers, 134 U.S. 547 (1890), similarly in-

volved a railroad’s challenge to municipal property taxes

on a writ of error to this Court, which the city moved to

dismiss on the ground that the plaintiff railroad had

“paid and satisfied [its tax obligation] in full” and had

paid the city its “costs in the case.” /d. at 548-549. The

Court concluded that the railroad’s payment “was in the

nature of a compromise, by which the city agreed to

take, and the [railroad] agreed to pay, a less sum than

was originally assessed.” /d. at 556; see id. at 549-550.

Dismissal was warranted, the Court concluded, because

“(tJhe effect of (that compromise] was to extinguish the

controversy between the parties.” Jd. at 556. As in San

Mateo, the Court did not address the effect of a rejected

settlement proposal.

5. Although an unaccepted offer of complete relief

cannot moot a plaintiff's claim, courts should be reluc-

tant to expend judicial and litigation resources adjucicat-

ing the merits of a demand for relief that the defendant

informs the court it will fully satisfy. That legitimate

impulse, however, suggests that the court should enter

judgment for the plaintiff, not against him. That is the

proper course for a court to follow if the plaintiff identi-

fies no additional relief that he could realistically obtain,

cf. Fed. R. Civ. P. 54(c), and if further litigation would

serve no other legitimate purpose. In the present cir-

cumstances, however, it would have been inappropriate

for the district court to terminate this suit by entering

judgment in respondent’s favor on his individual! claim,

even if petitioner had requested that disposition below.

Because that disposition would have prevented respond-

ent from invoking the cost-sharing mechanisms of Rule

23, it would not have provided respondent complete

relief on the (individual and class) claims asserted in his

complaint.

“[T)he principle of party presentation [is] basic to

our adversary system,” Wood v. Milyard, 132 S. Ct.

1826, 1833 (2012), which rests on the “premise that the

parties know what is best for them” and “rel[ies] on

the parties to frame the issues for decision,” Greenlaw

v. United States, 554 U.S. 237, 243-244 (2008). A de-

fendant therefore may elect not to contest liability and

to litigate only the scope of relief. Or a defendant may

decide not even to contest relief. If a defendant know-

ingly accepts an adverse judgment for the full relief

sought rather than litigating the merits, a court may

rely on that choice by exercising its discretion to enter

judgment upon it. See Genesis HeathCare, 133 S. Ct.

at 1536 (Kagan, J., dissenting); see also, e.g., Tanasi,

786 F.3d at 200; O’Brien v. Ed Donnelly Enters., Inc.,

575 F.3d 567, 575 (6th Cir. 2009).°

* Although a court’s entry of judgment pursuant to the defend-

ant’s surrender is sometimes described as “moot({ing)” the claim,

e.g., Tanasi, 786 F.3d at 200, that characterization is imprecise.

While a defendant's capitulation may obviate the need fur the court

to make an insiependent assessment of the merits, the court never-

theless adjudicates the claim when it renders judgment pursuant

to the defendant’s consent. Unlike most judgments, however, a

judgment hased on the defemdant’s consent ordinarily will have no

future issue-prechusive effect, beeause the merits of the case are

not “actually litigated and determined” and because the judgment

does not rest on a resolution of the merits. Bobby v. Bies, 566 U.S.

825, 834 (2009) (citation omitted); see 1 Restatement (Second) of

Judgments § 27 cmt. e, at 257 (1982) (Absent an agreement that

does not apply “in the case of a judgment entered by confession,

consent, or default.”).

When a plaintiff has asserted a colorable class-wide

claim, however, a court would abuse its discretion by

entering judgment for the plaintiff on his individual

claim before resolving the question of class certification.

If the plaintiff has asserted a class claim, an offer of full

relief for his individual claim alone fails to “offer{} all

that has been requested in the complaint (i.¢., relief for

the class).” Deposit Guar. Nat'l Bank v. Roper, 445 U.S.

326, 341 (1980) (Rehnquist, J., concurring). As a result,

“{ajeceptance [of such a less-than-complete offer] need

not be mandated,” ibid., when the question of clase certi-

fication remains outstanding.

Rule 23 confers upon plaintiffs a “procedural right” to

“assert their own claims in the framework of a class

action.” Roper, 445 U.S. at 332. Allowing a plaintiff to

proceed on his individual claim within a class action

serves important policy interests. A plaintiff may utilize

the class-action mechanism to distribute the costs of

litigation across the class. /d. at 338 & n.9. A defendant

can reduce the litigation expenses that multiple lawsuits

might entail, since a judgment favorable to the defendant

will bind all class members. Consolidation of claims

likewise can conserve limited judicial resources. By

contrast, “(rjequiring multiple plaintiffs to bring sepa-

rate actions, which effectively could be ‘picked off’ by a

defendant’s tender of judgment before an affirmative

ruling on class certification could be obtained,” would

“frustrate the objectives of class actions,” would be “con-

trary to sound judicial administration,” and would “invite

waste of judicial resources by stimulating successive

suits brought by others.” Jd. at 339 (dictum).

B. Under Roper, Respondent Would Retain A Sufficient

Interest To Pursue Class Certification Even If His In-

dividual Claim Were Moot

Because petitioner’s unaccepted settlement offer did

not moot respondent’s individual claim, the Court need

not address the second question presented. But if the

Court concludes that the unaccepted offer did moot the

individual claim, respondent would retain a separate

financial interest in class certification that would allow

his action to remain live through the district court’s

class-certification decision. That proposition follows

from this Court’s decision in Roper, which petitioner has

not asked the Court to overrule. Pet. Br. 33. If the court

subsequently certifies a class, the class would “acquire[]

a legal status separate from the interest asserted by the

[named plaintiff],” Sosna v. Jowa, 419 U.S. 393, 399

(1975), that would itself be sufficient to allow a full adju-

dication of the merits.

In Roper, the plaintiffs brought a putative class action

for damages. After the district court denied class certifi-

cation, the court entered judgment for the plaintiffs

(over their objection) and dismissed their suit based on

the defendant’s offer to pay the plaintiffs’ individual

claims in full. 445 U.S. at 329-330. The defendant then

paid the judgment into the court registry. /d. at 330.

This Court held that the entry of judgment for the

named plaintiffs on their individual claims did not moot

their “individual and private case or controversy,”

because they retained an ongoing “economic interest

in class certification” that allowed them to appeal! the

adverse certification ruling. Roper, 445 U.S. at 332-

333. The Court held that the plaintiffs possessed an

economic interest in class certification because certifi-

cation would enable them to recover attorney’s fees

and costs by “allocating such costs among all members

of the class who benefit from any recovery.” Jd. at 334

n.6, 336, 338 n.9. Cf. Boeing Co. v. Van Gemert, 444

U.S. 472, 478-479 (1980) (holding that named plaintiff

may obtain common-fund fee award from a money judg-

ment obtained by a class). The Court explained that

the class-certification ruling was “collateral to the

merits” of the litigation, and that the court of appeals

could adjudicate the plaintiffs’ challenge to that ruling

without “passing on the merits of the substantive

controversy.” Roper, 445 U.S. at 336.

Respondent possesses precisely the same economic

interest as the Roper plaintiffs in shifting his litigation

expenses to the class. To be sure, Roper involved an

appeal from the denial of class certification, whereas the

district court made no certification ruling in this case.

But if a named plaintiff's “economic interest in class

certification” (445 U.S. at 333) is sufficient to allow him

to appeal an adverse certification ruling, notwithstanding

the defendant’s full payment of the plaintiff's individual

claim, the same interest is likewise sufficient to allow the

plaintiff to litigate that collateral issue in district court

either directly or on remand from an appeal.

Petitioner argues (Br. 33) that Roper is “inapplicable”

here because Genesis HealthCare “made clear that Rop-

er is limited to its facts.” That is incorrect. Genesis

HealthCare acknowledged Roper’s holding that “the

named plaintiffs possessed an ongoing, personal econom-

ic stake” in “shift{ing] a portion of attorney’s fees and

expenses to successful class litigants.” 133 S. Ct. at 1532.

The Court also noted that Roper contained dicta empha-

sizing the importance of class-certification decisions and

the undesirability of allowing defendants to “pick off”

named plaintiffs, ibid., and it expressly declined to con-

sider whether Roper’s “continuing validity” had been

eroded by subsequent decisions, id. at 1532 n.5. Peti-

tioner has not asked this Court to overrule Roper. Cf.,

e.g., Alabama v. North Carolina, 560 U.S. 330, 355 n.6

(2010) (declining to overrule precedent sua sponte with-

out the benefit of argument from the parties). Under

that decision, respondent would retain a sufficient inter-

est to pursue class certification in district court even if

petitioner’s settlement offer had rendered his individual

claim moot.’

’ Although “a plaintiff cannot achieve standing to litigate a sub-

stantive issue by bringing suit for the cost of bringing suit,” Steel

Co., 523 U.S. at 107, respondent clearly had Article III standing

when he filed his complaint. The determination whether the

district court was divested of the Article III jurisdiction it initially

possessed is governed by doctrinal rules different from, and

somewhat less rigid than, those governing the initial standing

inquiry. See Laidlaw, 528 U.S. at 189-192 (discussing exceptions

to mootness that would not support Article III standing). It is

particularly appropriate to distinguish between these two contexts

because respondent, in making his initial decision to commence

suit, could legitimately rely on the potential for cost-shifting

provided by the Rule 23 mechanism. See Resp. Br. 32, 35, 41-43.

In Lewis v. Continental Bank Corp., 494 U.S. 472 (1990), the

Court held that, where an intervening statutory amendment had

deprived the plaintiff of any continuing stake in the underlying

merits issue, the plaintiff's interest in recovering its attorney's

fees—which the plaintiff could have recovered only if it ultimately

“‘prevailfed]’ by winning the relief it seeks” at the end of the case

—<did not provide a constitutionally sufficient basis for continued

appellate litigation of that merits question. /d. at 478, 480. That

holding is not logically inconsistent with Roper’s conclusion that a

plaintiff's “economic interest in class certification” as a predicate

to a common-fund fee award based on the class’s own recovery can

enable him to pursue such certification as a discrete matter “col-

lateral to the merits.” 445 U.S. at 333, 336. Indeed, even after

lawsuits are resolved on the merits, parties frequently continue to

II. PETITIONER IS NOT ENTITLED TO “DERIVATIVE

SOVEREIGN IMMUNITY”

Petitioner argues (Br. 35-50) that it is entitled to “de-

rivative sovereign immunity” because its alleged viola-

tion of the TCPA occurred while petitioner was execut-

ing its contract with the Navy. That is incorrect.

The government utilizes contractors to perform

various functions on the government’s behalf. In

doing so, the government ordinarily can authorize

contractors to take actions that the government could

lawfully perform itself. That principle flows, not from

any derivative “immunity” from liability for unlawful

acts, but from the common-law rule that a principal

may delegate to its agents its own “privilege” to take

certain actions lawfully. That common-law agency

rule does not aid petitioner, however, because the

government never authorized petitioner to send text

messages to unconsenting recipients.

1. Federal agencies are not subject to the substan-

tive prohibitions imposed by the TCPA. The TCPA

prohibits “any person” from taking specified actions, 47

U.S.C 227(d)(1), without defining the term “person” to

include the United States or its agencies. The parties

appear to agree that the United States and its agencies

are not “person{s]” within the meaning of the TCPA.

See Resp. Br. 8; Pet. Br. 2, 8. Cf. Vermont Agency of

Nat. Res. v. United States ex rel. Stevens, 529 U.S. 755,

780-781 (2000) (explaining that the term “person” is

presumed “not [to] include the sovereign” when Con-

gress has imposed new obligations on such persons).”

litigate disputed collateral issues concerning their respective

entitlements to fees and costs.

* This Court has held that the wiretap provisions of the Commu-

nications Act, 47 U.S.C. 605, apply to government agents as “per-

Federal agencies may conclude that the performance

of particular governmental functions warrants making

calls that, if made by a private person, would violate the

TCPA. The Census Bureau, for instance, could conclude

that its duty to conduct the decennial census, see 13

U.S.C. 141(a), warrants use of automated telemarketing

and texting outreach to contact and identify members of

the population without their advance consent. The

TCPA does not prohibit such governmental calls, and it

need not be read to prohibit the government from direct-

ing private contractors to make such calls on its behalf.

In various contexts, particular entities are “privileged

to do an otherwise tortious act,” 2 Restatement (Second)

of Agency § 343 cmt. c, at 105 (1958), when a privilege

“result[s] from the consent of another” or is “created by

the law irrespective of consent,” 1 id. § 217 cmt. a, at 469.

Because the TCPA’s prohibitions do not apply to federal

agencies, those agencies possess a privilege to engage in

conduct that private parties are forbidden to undertake.

Ordinarily such “privileges are delegable,” i.¢., the privi-

lege holder can lawfully authorize another to perform the

privileged act on the holder’s behalf. /bid. Whether a

“privilege[] created by statute” is delegable or must be

“exercised personally” is ultimately a question of statu-

tory construction. 1 id. § 17 cmt. b, at 86; see 2 id. § 345

emt. a, at 108.

By contrast, “an immunity frees one who enjoys it

from a lawsuit whether or not he acted wrongly.” Rich-

ardson v. McKnight, 521 U.S. 399, 403 (1997) (citing

Wyatt v. Cole, 504 U.S. 158, 171-172 (1992) (Kennedy, J.,

sons” under those provisions. See Nardone v. United States, 302

U.S. 379, 382-383 (1937). In the government’s view, the term

“person” in the TCPA carries a different meaning. That issue,

however, is not before this Court.

concurring)). ‘Immunities thus can “protect an admitted

wrongdoer from civil liability” because “an overriding

public policy” justifies the grant of immunity. 2 Re-

statement (Second) of Agency § 347 cmt. a, at 111. Al-

though “sovereign immunity shields the Federal Govern-

ment and its agencies from suit” absent a statutory wai-

ver, FDIC v. Meyer, 510 U.S. 471, 475 (1994), a determi-

nation that the government is immune from a particular

suit does not mean that the challenged governmental

conduct was lawful. It simply means that courts are not

authorized to grant relief based on the asserted violation

of a legal duty. An immunity is thus quite different from

a privilege, which serves to legitimize the conduct of the

privilege-holder or his appropriate delegee.

Likewise, the qualified immunity held by individual

officials is an “entitlement not to stand trial or face the

other burdens of litigation.” Mitchell v. Forsyth, 472

U.S. 511, 526 (1985). Qualified immunity, like immunity

more generally, “is conceptually distinct from the merits

of the plaintiff's claim that his rights have been violated.”

Id. at 527-528. So long as the official’s actions did not

violate a “clearly established” right, qualified immunity

is warranted even when “the plaintiff's claim * * * in

fact has merit.” Camreta v. Greene, 131 S. Ct. 2020, 2031

(2011) (citation omitted).

2. At common law, “{i}mmunities, unlike privileges,

are not delegable and are available as a defense only to

persons who have them.” 1 Restatement (Second) of

Agency § 217 cmt. b, at 470; see 2 id. § 347 cmt. a, at 111

(“Immunities * * * are strictly personal to the individ-

ual and cannot be shared.”). That principle is reflected

in this Court’s decisions rejecting claims that a govern-

ment agent or contractor shares in the United States’

sovereign immunity.

In Sloan Shipyards Corp. v. United States Shipping

Board Emergency Fleet Corp., 258 U.S. 549 (1922)

(Holmes, J.), the Court rejected the government’s con-

tention that the Emergency Fleet Corporation—a corpo-

ration wholly owned by the government and vested by

the government with “enormous powers”—“share[d] the

immunity of the sovereign from suit.” Jd. at 566; see id.

at 565. The Court held that, because the United States’

“Immunity does not extend to those that acted in its

name,” an “agent [of the government], because he is

agent, does not cease to be answerable for his acts.” /d.

at 567-568.

The Court reached the same result in Brady v. Roo-

sevelt Steamship Co., 317 U.S. 575, 576 (1943), in which a

private contractor operated a government-owned vessel

on behalf of the United States Maritime Commission.

When a customs inspector died from an accident on that

vessel, the contractor argued that it was “non-suable for

[its] torts” because it could be sued only pursuant to the

statutory waiver of the government’s sovereign immuni-

ty in the Suits in Admiralty Act, 46 U.S.C. 741 et seq.

(1940). See 317 U.S. at 576-577. The Court rejected that

contention, holding that the contractor could not obtain

“(immunity from suit” “by reason of a contract between

[it] and the [federal government].” /d. at 583. Although

the Court assumed that Congress “would have the power

to grant immunity to private operators of government

vessels for their torts,” it found “not the slightest intima-

tion” that Congress intended to make “such a basic

change in one of the fundamental laws of agency” by

“abolish{ing] all remedies that might exist against a

private company for torts committed during its operation

of government vessels under [government] agency

agreements.” /d. at 579-581.

Petitioner relies heavily on decisions concerning the

qualified immunity enjoyed by individuals who perform

services for the government and are sued for alleged

wrongs they have committed while serving in that capac-

ity. See Pet. Br. 36-39 (repeatedly citing, e.g., Filarsky

v. Delia, 132 S. Ct. 1657 (2012)). Petitioner identifies no

decision of this Court holding that a corporation (as

distinct from an individual) is entitled to qualified im-

munity. And the existence of the qualified-immunity

doctrine as a separate limit on potential liability simply

underscores that persons who act on the government’s

behalf do not automatically share the government’s own

immunity from suit. The Court’s qualified-immunity

jurisprudence therefore provides no suppoft for peti-

tioner’s proposed general rule that government contrac-

tors are entitled to “derivative sovereign immunity.”

3. Petitioner principally relies (Br. 35, 37-41) on

Yearsley v. W.A. Ross Construction Co., 309 U.S. 18

(1940). Petitioner’s reliance on that decision is mis-

placed. The Court in Yearsley did not confer derivative

immunity on a government contractor, but rather recog-

nized that the government could lawfully authorize its

contractor to take actions that the government itself

could lawfully take.

In Yearsley, the government contracted with a con-

struction company to redirect the Missouri River as

specified in the contract, which resulted in the erosion of

* Even assuming arguendo that private corporate entities could

be entitled to qualified immunity in some circumstances, the ques-

tion of qualified immunity is not before this Court. The courts below

did not resolve any claim to such immunity, and petitioner did not

seek review on a qualified-immunity question, Pet. i, let alone

demonstrate that it meets the distinct requirements of a qualified-

immunity claim.

about 95 acres of the Yearsleys’ land. 309 U.S at 19-20.

The Yearsleys’ land “was intended to be washed away as

a necessary part of the federal project” because the

project required it to be “washed away to a point pre-

determined by the Government” under the contract’s

“detailed specifications.” U.S. Amicus Br. at 5-6, Years-

ley, supra (No. 39-156); see Pet. Br. at 6, 21, Yearsley,

supra. The contractor’s work washing away the Years-

leys’ land thus “was all authorized and directed by the

Government.” 309 U.S. at 20.

The Yearsleys sued the contractor, but this Court

held that the contractor could not be held liable for erod-

ing their land. Although the Court assumed that the

actions authorized by the government would constitute a

“taking” of property, it concluded that such actions were

“within {the government’s] constitutional power” be-

cause the government by statute had “impliedly prom-

ised to pay [just] compensation.” Yearsley, 309 US.

at 21-22; see, e.g., Williamson Cnty. Regl Planning

Comm'n v. Hamilton Bank, 473 U.S. 172, 194 (1985)

(“The Fifth Amendment does not proscribe the taking of

property; it proscribes taking without just compensa-

tion.”). The Court further held that, because the gov-

ernment could lawfully take the Yearsleys’ property, it

could “validly confer[{]” on its contractor the authority to

do so. 309 U.S. at 22. The court explained that “no

ground [existed] for holding [a government] agent liable

who is simply acting under the authority thus validly

conferred” because, in such circumstances, “[t]he action

of the agent is ‘the act of the government.” /bid. (cita-

tion omitted).

Although the Court in Yearsley did not discuss the

distinction between “privileges” and “immunities,” the

Court held that the government had “validly conferred”

on the contractor the government’s own lawful authority

to take the Yéarsleys’ land. At common law, “({aJn agent

is privileged to do what otherwise would constitute a tort

if his principal [1] is privileged [2] to have an agent do it

and [3] has authorized the agent to do it.” 2 Restatement

(Second) of Agency § 345, at 108; see 1 id. § 17 & cmts. a-

b, at 85-86 (delegable privileges); 2 id. § 347, at 110 (no

immunity).’° Thus, if the United States possesses a priv-

ilege to take an action that others could not lawfully take,

and if that privilege is not a “personal” (ie., non-

delegable) one, a contractor may perform the action on

the government’s behalf if the government so directs.

The contractor in such circumstances is insulated from

liability, not because it possesses an “immunity” from

suit, but because its conduct is lawful.”

That understanding of Yearsley is consistent with the

Court’s approach to the preemption of state-law tort

claims against a contractor in Boyle v. United Technolo-

gies Corp., 487 U.S. 500 (1988). The Court in Boyle held

’ If the principal does not authorize the agent’s action in advance

but later ratifies it, that ratification will also release the agent

from liability to a third party if the agent’s actions would have

been lawful if authorized. 2 Restatement (Second) of Agency § 360

& illus. 2, at 135-136.

"In Brady, the Court cited Yearsley as reflecting that “govern-

ment contractors obtain certain immunity” when performing work

under government contracts. 317 U.S. at 583. The Court in Brady

also observed, however, that in Yearsley the government had

“validly conferred” authority to take the actions at issue. /bid.

(citation omitted). Brady’s passing use of the term “immunity”

thus appears to reflect a more colloquial use of the term. Cf. 2

Restatement (Third) of Agency § 7.01, at 136 (2006) (noting that

courts sometimes “use ‘immunity’ language interchangeably with

‘privilege’ in the context of an agent’s individual liability for tor-

tious interference”).

that state-law design-defect claims involving military

equipment are preempted “when (1) the United States

approved reasonably precise specifications; (2) the

equipment conformed to those specifications; and (3) the

supplier warned the United States about the dangers in

the use of the equipment that were known to the supplier

but not to the United States.” Jd. at 512.

Boyle teaches that certain state-law claims against

contractors are preempted when allowing those claims

“would produce the same effect sought to be avoided” by

the FTCA’s exception for “discretionary functions.” 487

U.S. at 511. The Court in Boyle did not hold or suggest,

however, that the application of state tort law to federal

contractors is categorically preempted. Rather, the

prerequisites to Boyle preemption described above en-

sure that the United States has actually authorized its

contractor to take the allegedly tortious action with full

knowledge of its potentially harmful effects. Similarly

with respect to federal statutory prohibitions, requiring

governmental authorization to engage in conduct that

would be unlawful absent a delegation of the govern-

ment’s privilege facilitates the government’s ability to

balance the need for such action against the countervail-

ing policies that animate the generai prohibition.”

Petitioner relies in part (Br. 41, 47, 49-60) on the United States’

petition-stage brief in ABR, Inc v. Metzgar, 135 S. Ct. 1153 (2015)

(denying certiorari). That brief addressed the circumstances in

which a state-law tort claim will be preempted by principles drawn

from the FTCA’s “combatant activities” exception, which pre-

serves the sovereign immunity of the United States from claims

“arising out of the combatant activities of the military or naval

forces, or the Coast Guard, during time of war.” 28 U.S.C. 2680(/j).

The government argued that, in circumstances where “a similar

claim against the United States would be within the FTCA’s

combatant-activities exception,” a claim against the government's

4. In any particular case, the determinations whether

the government has a privilege to act, whether that

privilege is delegable, and whether the government has

authorized an agent to perform a particular act that

“otherwise would constitute a tort” will turn on an analy-

sis of the relevant statutory or constitutional context in

light of background agency principles. The FCC is cur-

rently considering requests to clarify that a federal

agency (e.g., the Census Bureau) may utilize private

contractors to make calls on behalf of the agency, even in

circumstances where similar calls would violate the

TCPA if they were made on behalf of a private entity.

See FCC, Public Notice, 29 FCC Red. 13,916, 13,916-

13,917 (2014); FCC, Public Notice, 29 FCC Red.

11,268, 11,268 (2014). But regardless of whether and

under what circumstances a federal agency may delegate

its privilege to make such calls lawfully under the TCPA,

petitioner could not invoke such a privilege here because

the Navy never authorized petitioner to send text mes-

sages to unconsenting individuals.

contractor should ordinarily be preempted “as long as the alleged

conduct at issue was within the general scope of the contractual

relationship between the contractor and the federal government.’

U.S. Cert. Amicus Br. at 15-16, KBR, supra (No. 13-1241). The

government's position in that case rested on the broad text of the

combatant-activities exception and on the ground that the “mili-

tary’s effectiveness would be degraded if its contractors were

subject to the tort law of multiple States for actions occurring in

the course of performing their contractua] duties arising out oi

combat operations.” Jd. at 14. That brief reflects the govern-

ment’s view that the protections afforded to federal contractors

depend in part on the nature of the services they perform and the

government interests involved; it does not support the categorical

rule of “derivative sovereign immunity” that petitioner aclvocates.

The summary-judgment evidence, which at this stage

of the case must be construed in the light most favorable

to respondent, indicates that petitioner agreed “to send

[the] messages only to cellular users that had con-

sented to solicitation,” and that petitioner “was not

authorized to send texts to individuals who had not

opted in.” Pet. App. 2a, 4a. As explained above, the

ability of an agent to invoke a privilege held by its

principal depends on, inter alia, the principal’s deci-

sion to delegate its own authority to act. Although the

Navy could lawfully have sent recruiting text messag-

es to respondent and other unconsenting recipients,

the record does not suggest that it delegated that

privilege to petitioner. Thus, even if petitioner had

argued that its own conduct was lawful, rather than

attempting to invoke the United States’ immunity

from suit, its argument would lack merit under the

circumstances of this case.

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.