Whether the Yearsley defense is a jurisdictional defense or an affirmative defense, and whether it applies to violations of federal law or only state law

QUESTIONS PRESENTED Almost 80 years ago, in Yearsley v. W. A. Ross Const. Co., 309 U.S. 18, 21-22 (1940), under seemingly innocuous facts, this Court created a defense to liability for a private contractor who caused flood damage while building dikes as authorized by a federal statute and as directed by a federal government agency. Because the Yearsley Court did not articulate the scope of, and rationale for, the defense it created,! the defense has become a means by which federal agencies have exonerated unlawful conduct by private contractors that now receive more than $500 billion per year to engage in an ever-growing array of tasks, ranging from running prisons to marketing private health insurance options under the Affordable Care Act. The Fourth Circuit granted a private government contractor immunity from liability in this case for violating federal laws prohibiting robocalls, presenting these questions: 1. Is the private contractor’s defense described in Yearsley a jurisdictional defense that, like the government’s sovereign immunity, may be the subject of a motion to dismiss pursuant to Fed. R. ! E.g., Kuwait Pearls Catering Co., WLL v. Kellogg, Brown & Root Servs., Inc., 853 F.3d 173, 185 (5th Cir. 2017) (“Yearsley’s rationale is both sparse and unclear”); Adkisson v. Jacobs Engineering Group, Inc., 790 F.3d 641, 646 (6th Cir. 2015) (“Yearsley’s spare reasoning . . . creates uncertainty as to the scope of the decision”), cert. denied, 136 S. Ct. 980 (2016). li QUESTIONS PRESENTED Continued Civ. P. 12(b)(1) — a motion on which the injured plaintiff bears the ultimate burden of proving subject matter jurisdiction — as the Fourth Circuit ruled? Or does Yearsley instead articulate an affirmative defense that the private contractordefendant bears the burden of proving on a motion for summary judgment or at trial, as the Fifth, Sixth and Ninth Circuits have ruled? 2. Does Yearsley enable a federal agency to direct a private contractor to violate federal laws passed by Congress on the theory that the contractor’s immunity is derivative of the federal government’s sovereign immunity, as the Fourth Circuit ruled? Or does Yearsley enable a federal agency to direct a contractor to violate only state laws, as the Second, Sixth and Ninth Circuits have determined, because the theory underlying the defense is state law preemption and because an executive agency may not intrude upon Congress’s powers to enact federal laws? 3. Does a federal statute’s grant of general authority to an agency to administer a government program empower the agency to direct a contractor to engage in conduct that violates another federal statute, and thereby exonerate conduct violating that other federal statute?