Almost 80 years ago, in Yearsley u. 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,1 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.
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?

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