GEO Group v. Menocal
Whether the denial of a government contractor's claim of Yearsley immunity from suit is an immediately appealable collateral order under the final judgment rule of 28 U.S.C. § 1291.
The Decision
Roberts
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Sotomayor
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Gorsuch
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Kavanaugh
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Jackson
·Decided February 25, 2026
Majority Opinion— Justice Kagan
The Supreme Court held that when a trial court denies a federal contractor's claim of protection under the Yearsley doctrine—which shields contractors from liability for actions the government lawfully authorized and directed them to perform—that ruling cannot be immediately appealed. Instead, the contractor must wait until the case is fully resolved at the trial level before seeking appellate review.
The key reasoning turned on whether Yearsley provides a "merits defense" (a reason the contractor's conduct was lawful) or an "immunity from suit" (a right to avoid being subjected to a trial at all). The Court concluded Yearsley is a merits defense, not an immunity. Under Yearsley, a contractor is protected only when it acted within the bounds of a lawful government authorization—in other words, only when it followed the law. If the contractor exceeded its authority or acted under an unlawful authorization, Yearsley offers no protection. Because the doctrine depends on whether the contractor's conduct was legal, it functions as a defense to liability rather than a blanket shield from litigation. The Court also emphasized that sovereign immunity belongs to the government alone and cannot be transferred to private contractors.
As a practical matter, this means that private contractors like GEO Group, which operates an immigration detention facility, cannot halt trial proceedings and immediately appeal to a higher court when a judge rules that the Yearsley defense doesn't apply. They must go through the full trial process first. If they lose, they can raise the Yearsley issue on appeal at that point. The underlying lawsuit—alleging that GEO forced detainees to work without pay or for $1 a day—will now proceed to trial.
Concurring Opinions
Justice Thomas
Justice Thomas agreed with the Court's conclusion and its reasoning that Yearsley provides a defense from liability rather than an immunity from suit. However, he declined to join the portion of the opinion applying the Cohen collateral-order doctrine, which allows certain interlocutory orders to be immediately appealed. Thomas has long maintained that the Cohen doctrine improperly allows judges to create exceptions to Congress's final-judgment rule through judicial opinions, rather than through the rulemaking process that Congress designated for that purpose. In his view, courts should not expand the collateral-order doctrine beyond the categories of orders that prior precedents have already recognized as immediately appealable.
Justice Alito
Justice Alito agreed with the result but took a different analytical path. He argued that the majority oversimplified the law by focusing primarily on whether the Yearsley defense turns on the legality of a defendant's conduct. Alito pointed out that qualified immunity—which courts have long treated as immediately appealable—also often turns on whether the defendant violated the law, yet it is still considered an immunity from suit. Conversely, some defenses that don't concern a defendant's conduct have been held not to be immunities.
Instead, Alito argued the proper test is whether allowing immediate appeals is necessary to protect important constitutional or public-policy interests—such as separation of powers, governmental efficiency, or sovereign dignity. Applying that test, he concluded that the Yearsley doctrine does not implicate sufficiently weighty interests to warrant treating it as an immunity. Contractors already have access to qualified immunity to guard against overdeterrence and distraction in government service, and Yearsley does not raise the kind of sovereign-dignity concerns that justify treating sovereign immunity denials as immediately appealable.
Background & Facts
The GEO Group is a private company that operates immigration detention facilities under contract with U.S. Immigration and Customs Enforcement (ICE). Detained individuals sued GEO for alleged forced labor violations related to a 'Voluntary Work Program' at the facility, in which detainees performed work for a stipend set by the government. GEO claimed it was immune from suit under the Yearsley doctrine, arguing that it was simply following the government's instructions and operating the same program the government runs at its own facilities.
The district court not only denied GEO's claim of Yearsley immunity but actually granted summary judgment to the detainees on the Yearsley issue, finding GEO was not entitled to the protection. GEO attempted to immediately appeal this ruling rather than waiting until after trial, but the Tenth Circuit dismissed the appeal, holding that denial of a Yearsley claim is not the type of order that can be immediately appealed before a final judgment.
The case thus does not ask the Supreme Court to decide whether GEO actually qualifies for Yearsley protection. Instead, the narrow procedural question is whether GEO has the right to immediately appeal the denial of that protection, or whether it must wait until after trial to challenge the ruling.
Why This Case Matters
This case could significantly affect how private companies that perform government functions — from running detention facilities to providing military support to managing healthcare programs — are treated in lawsuits. If the Court rules that Yearsley denials are immediately appealable, government contractors across all sectors would gain a powerful procedural tool to halt litigation early. If the Court rules against GEO, contractors would have to endure full trials before challenging denials of their Yearsley defense on appeal.
The case also forces the Court to clarify the fundamental nature of the Yearsley doctrine itself: is it a true immunity from being sued at all (like qualified immunity for government employees), or merely a defense that excuses liability at trial? This characterization has enormous practical consequences, as immunities from suit can be appealed immediately while ordinary defenses generally cannot. The outcome will also shape the broader collateral order doctrine and its application to an era of expanding government reliance on private contractors.
The Arguments
Yearsley establishes a true immunity from suit for government contractors who act within Congress's constitutional authority and comply with federal directions. Because it is an immunity from suit — not merely a defense to liability — its denial is an immediately appealable collateral order, just as denials of qualified immunity are appealable for government employees.
- The Supreme Court in Knick, Brady, and other cases has consistently described Yearsley as conferring an immunity from suit, not just a defense to liability
- Contractors cannot adequately price litigation risk into their contracts due to Federal Acquisition Regulation restrictions and the Antideficiency Act, making post-trial appeal inadequate
- Creating a special rule denying immediate appeal only to contractors would leave a gap where every other participant — ICE officials, the sovereign itself — can appeal immunity denials but the contractor doing the same work cannot
- The government's current opposing position represents a recent break from decades of supporting contractor immunity, having previously told the Court in Yearsley itself that contractor immunity was 'obvious as a matter of principle'
Key Exchanges with Justices
Justice Kagan
“Is GEO saying it satisfied Yearsley criteria and therefore did nothing wrong, or that even though it did something wrong, it is protected from legal consequences?”
GEO's counsel chose the 'latter' interpretation — that Yearsley protects even when the contractor's actions violated the law — which is the stronger claim for immunity status but harder to defend doctrinally.
Justice Kavanaugh
“Why is the government on the other side from you, given your argument that this affects all government programs?”
GEO struggled to explain this, attributing it to the government's recent 'creative' recharacterization of Yearsley as a derivative privilege rather than an immunity, and acknowledged it was 'a good question.'
Justice Jackson
“What do we do with the fact that in Yearsley itself the government had waived sovereign immunity, creating an odd scenario where the contractor would have immunity but the government itself wouldn't?”
GEO argued this actually shows how the system should work: the sovereign waives immunity and accepts liability for takings, and plaintiffs should sue the government rather than the contractor.
Yearsley is a defense to liability rooted in ordinary agency principles, not an immunity from suit. GEO fails all three requirements for collateral order appeal: Yearsley does not confer a right to avoid trial, the government itself says immediate appeal is unnecessary, and Yearsley determinations are fact-intensive and inseparable from the merits.
- Historical cases cited by Yearsley itself — including Hopkins v. Clemson, Murray's Lessee, and Brady — describe it as a defense where agents can be sued but can defend by showing lawful authority, not as an immunity from suit
- Will v. Hallock held that even a statutory immunity from suit for government employees did not justify immediate appeal when the interest at stake was merely avoiding litigation burdens
- Unlike qualified immunity's pure legal question about clearly established law, Yearsley always requires answering fact-bound questions about what the contractor did versus what the government directed
- If the Court thinks policy considerations warrant immediate appeal for contractors, the proper avenue is rulemaking under the Rules Enabling Act, not expansion of the collateral order doctrine
Key Exchanges with Justices
Justice Alito
“GEO is doing exactly what government officials could do running these facilities, so why shouldn't the rule for immediate appeal be the same for GEO as for ICE officials who could appeal denials of qualified immunity?”
Bennett distinguished the doctrines by arguing qualified immunity is specifically justified by encouraging government employees to show initiative in the face of unclear law — a rationale that doesn't apply to Yearsley, which requires strict compliance with government directions.
Justice Thomas
“If we agree with you, what approach should we take in disposing of this case?”
Bennett suggested the most straightforward approach is to hold that Yearsley is not a right to avoid trial, with the effective unreviewability prong (citing Will v. Hallock) as a strong secondary basis.
Justice Jackson
“What about Campbell-Ewald — didn't that case address whether Yearsley is an immunity?”
Bennett argued Campbell-Ewald didn't actually decide this question, noting the opinion put 'derivative sovereign immunity' in scare quotes throughout and was decided after final judgment, so the interlocutory appeal issue wasn't presented.
Yearsley reflects an important defense to liability grounded in agency principles, not an immunity from suit. While the defense is critical to the government's contracting efforts, under the Court's collateral order jurisprudence, denial of a standard defense to liability — even an important one — is not immediately appealable.
- When a contractor satisfies Yearsley's conditions, there is no gap between entitlement to the defense and having acted lawfully — the Venn diagrams are 'circles on top of each other'
- Contractors can price in some litigation costs through overhead, obtain litigation insurance, and even secure capped indemnity clauses conditioned on available appropriated funds
- A federal agency does not have authority to violate a federal statute, so it cannot confer that authority on a contractor — meaning Yearsley's first prong requires actual lawfulness, not just constitutional power
- There is no empirical evidence that district courts are systematically getting Yearsley wrong, and contractors continue to bid on contracts in circuits that deny collateral order appeal
Key Exchanges with Justices
Justice Kavanaugh
“GEO's counsel mentioned the False Claims Act as a barrier to pricing in litigation costs — isn't that a concern?”
Joshi expressed uncertainty about why pricing overhead costs into a bid would violate the False Claims Act, and Justice Kavanaugh noted that 'representation' would likely be cited in future proceedings — suggesting the government's position could have real-world consequences.
Justice Sotomayor
“Isn't the simple answer that Yearsley cases are factually intertwined with the merits and therefore not separable as required for collateral orders?”
Joshi acknowledged the appeal of that approach but cautioned that the case really depends on whether Yearsley is an immunity from suit, because qualified immunity and other immunities also involve facts intertwined with the merits yet are still deemed collateral orders.
Precedent Cases Cited
Yearsley v. W.A. Ross Construction Co.
The foundational case at the center of this dispute. It established that government contractors acting within Congress's constitutional authority and in compliance with federal directions are protected from suit — the key question is whether this protection is an 'immunity from suit' or a 'defense to liability.'
Campbell-Ewald Co. v. Gomez
577 U.S. 153
Cited by multiple parties as the most recent Supreme Court discussion of Yearsley's nature. GEO argued it distinguished contractor immunity from sovereign immunity; respondents argued it put 'derivative sovereign immunity' in scare quotes and rejected the contractor's immunity claim.
Filarsky v. Delia
566 U.S. 377
GEO cited it to argue that the same policy considerations (avoiding timidity, encouraging service) support immunity for contractors as for employees. Respondents cited it to argue that where history and policy support immunity, contractors get qualified immunity — not a separate Yearsley immunity.
Will v. Hallock
546 U.S. 345
Respondents and the government cited it as holding that even a statutory bar on suit for government employees does not justify immediate appeal under the collateral order doctrine when the interest at stake is merely avoiding litigation burdens.
Mitchell v. Forsyth
472 U.S. 511
Cited as the leading case establishing that denial of qualified immunity is an immediately appealable collateral order. Respondents distinguished it by arguing the pure legal question in qualified immunity (clearly established law) has no equivalent in Yearsley.
Knick v. Township of Scott
588 U.S. 180
GEO cited a footnote stating Yearsley was 'correct to recognize an immunity from suit.' Respondents countered that the next sentence says the Tucker Act provides a complete remedy excluding liability, showing 'immunity' was used loosely.
Larson v. Domestic & Foreign Commerce Corp.
337 U.S. 682
Respondents cited it as the Court's clearest summary of the principle that government agents are liable for their own torts under ordinary agency law, even when acting for the government, undermining the claim that Yearsley creates a special immunity.
Johnson v. Jones
515 U.S. 304
Respondents cited it to show that when an immunity determination turns on whether there is a sufficient factual dispute to send to a jury — as Yearsley does — the order is not immediately appealable.
Legal Terminology
Analysis & Opinions
The Supreme Court ruled in GEO Group v. Menocal that a private contractor for ICE cannot pursue an immediate appeal from a district court judgment. The decision limits the ability of government contractors to use interlocutory appeals in such cases.
The Supreme Court released opinions in two cases on February 25: Villarreal v. Texas and The GEO Group, Inc. v. Menocal. SCOTUSblog provided live coverage as the decisions were handed down.