Public Contract Law Journal

Is Derivative Sovereign Immunity Jurisdictional? An Analysis and Resolution of the Circuit Split

by Victoria Eatherton

Victoria Eatherton ( is a graduate of The George Washington University Law School Class of 2018. She is a proud alumna of Villanova University, where she graduated magna cum laude with a Bachelor of Arts in Economics and Political Science. She will be practicing law in the Washington, D.C., area.

I. Introduction

On April 27, 1983, United States Marine Corp pilot Lieutenant David Boyle drowned when his helicopter crashed and sank off the Virginia coast.1 David’s father brought a wrongful death suit against Sikorsky, the helicopter manufacturer, alleging Sikorsky defectively designed the emergency escape hatch.2 The escape door opened only outward, rendering it impossible to open in a submerged craft given the water pressure.3 The jury returned a verdict in favor of David Boyle and awarded him $725,000.4 However, the Fourth Circuit reversed the verdict and found Sikorsky was immunized from tort liability, leaving David’s family with nothing.5 Why? Derivative sovereign immunity.

The doctrine of sovereign immunity originated in English common law and bars individual entities from suing the United States. As the federal government began to expand in size and complexity, so too did the need to contract out services to private companies. The question soon arose as to whether the government’s immunity from liability extends to contractors acting on its behalf. In 1940, the Supreme Court in Yearsley v. W. A. Ross Construction Co. created the doctrine of derivative sovereign immunity to extend protection to contractors.6 In 2016, the Court clarified its Yearsley ruling in Campbell-Ewald v. Gomez: derivative sovereign immunity is a qualified immunity that may shield any government contractor from liability, even those not engaged in public works, unless the contractor violated federal law or explicit contractual instructions.7 However, the Court lacked occasion to address whether Yearsley immunity is jurisdictional in nature, and lower courts remain divided on this issue.8 To resolve the current circuit split,9 Yearsley immunity should be a jurisdictional bar brought by parties in a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).

This Note will explore and propose an answer to the current circuit split over whether derivative sovereign immunity is jurisdictional. First, it will discuss the development of the doctrine and the rationale behind its continued use and importance. Second, it will explain the Supreme Court’s current position on the scope of immunity for government contractors and lower courts’ interpretations. Finally, this Note will propose a resolution to the circuit split by suggesting that derivative sovereign immunity is a jurisdictional bar from suit.

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