Petition for Writ of Certiorari — The GEO Group, Inc., Petitioner v. Alejandro Menocal, et al.
Supreme Court briefJan 13, 2025
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No. 24-__
In the Supreme Court of the United States
T HE GEO G ROUP , I NC .,
Petitioner,
v.
A LEJANDRO M ENOCAL , ET . AL .,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit
PETITION FOR WRIT OF CERTIORARI
SCOTT A. SCHIPMA
THE GEO GROUP, INC.
4955 Technology Way
Boca Raton, FL 33431
J ANUARY 13, 2025
DOMINIC E. DRAYE
Counsel of Record
WILLIAM E. EYE
CHRISTOPHER M. O’BRIEN
GREENBERG TRAURIG LLP
2101 L Street, N.W.
Washington, DC 20037
drayed@gtlaw.com
(202) 331-3100
i
QUESTION PRESENTED
Under 28 U.S.C. § 1291, the courts of appeals
“have jurisdiction of appeals from all final decisions
of the district courts.” This Court has held that certain orders are immediately appealable under Section 1291 even though they do not terminate the litigation. Such “collateral orders” include orders
denying claims of absolute immunity, qualified immunity, and state sovereign immunity.
The question presented, which has divided the
circuit courts 5-3, is whether an order denying a
government contractor’s claim of derivative sovereign immunity is immediately appealable under the
collateral-order doctrine.
ii
RULE 14.1(B) STATEMENT
The parties listed in the caption were parties to
the proceeding below. The only related proceeding
was an earlier appeal on an unrelated issue.
Menocal v. The GEO Group, Inc., 882 F.3d 905 (10th
Cir. 2018).
Pursuant to this Court’s Rule 29.6, undersigned
counsel state that The GEO Group, Inc. is a publicly
traded company. BlackRock Fund Advisors is a
publicly held corporation that owns 10% or more of
The GEO Group Inc.’s stock. No other publicly held
corporation owns 10% or more of The GEO Group,
Inc.’s stock.
iii
TABLE OF CONTENTS
Question Presented ...................................................... i
Rule 14.1(b) Statement ............................................... ii
Table of Contents .......................................................iii
Table of Appendices..................................................... v
Table of Authorities.................................................... vi
Petition for Writ of Certiorari ..................................... 1
Opinions Below ............................................................ 4
Jurisdiction .................................................................. 4
Pertinent Statutory Provisions ................................... 4
Statement of the Case ................................................. 5
I. Regulatory and Factual Background ............... 5
II. Proceedings Below ............................................ 8
Reasons for Granting the Petition ............................ 10
I. The Tenth Circuit’s Decision Deepens a
Circuit Split on the Appealability of
Orders Denying Claims of Derivative
Sovereign Immunity. ...................................... 11
II. The Decision Below Conflicts with this
Court’s Collateral-Order Jurisprudence. ....... 18
III.The Decision Below Has Profound
Implications for Government Contractors
and Separation of Powers. .............................. 29
iv
A. The Decision Below Burdens the
Performance of Government
Functions. .................................................. 30
B. The Decision Below Offends the
Separation of Powers. ............................... 31
Conclusion ................................................................. 33
v
TABLE OF APPENDICES
Appendix A — Order and Judgment of the
United States Court of Appeals for the Tenth
Circuit, filed October 22, 2024 ............................ 1a
Appendix B — Order of the United States
District Court for the District Of Colorado,
filed October 18, 2022 ........................................ 32a
Appendix C — 8 U.S.C.§ 1231 ............................ 131a
Appendix D — 28 U.S.C.§ 1291 .......................... 132a
Appendix E — Excerpts from PerformanceBased National Detention Standards 2011 .... 133a
vi
TABLE OF AUTHORITIES
CASES
Abney v. United States,
431 U.S. 651 (1977) ........................................19, 23
ACT v. Worldwide Interactive Network, Inc.,
46 F.4th 489 (6th Cir. 2022) ... 13, 14, 18, 22, 26, 30
Adkisson v. Jacobs Eng’g Grp.,
790 F.3d 641 (6th Cir. 2015) ..........................14, 15
Al Shimari v. CACI Premier Tech., Inc.,
775 F. App’x 758 (4th Cir. 2019) .............. 15, 16, 28
Alaska v. United States,
64 F.3d 1352 (9th Cir. 1995) ............................... 17
Brady v. Roosevelt S.S. Co.,
317 U.S. 575 (1943) ......................................... 1, 21
Cabalce v. Thomas E. Blanchard & Assocs.,
797 F.3d 720 (9th Cir. 2015) ................................. 9
CACI Premier Tech. v. al Shimari,
141 S. Ct. 2850 (2021) .............................. 10, 16, 18
Campbell-Ewald Co. v. Gomez,
577 U.S. 153 (2016) .......... 1, 2, 9, 21, 22, 25, 26, 30
Childs v. San Diego Family Hous. LLC,
22 F.4th 1092 (9th Cir. 2022) .............................. 17
Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541 (1949) .. 2, 11, 13, 18, 19, 21-24, 26-28
Coopers & Lybrand v. Livesay,
437 U.S. 463 (1978) ............................................. 23
vii
Cunningham v. Gen. Dynamics Corp.,
888 F.3d 640 (4th Cir. 2018) ............................... 28
FAA v. Cooper,
566 U.S. 284 (2012) ............................................. 33
FDIC v. Meyer,
510 U.S. 471 (1994) ............................................. 27
Feres v. United States,
340 U.S. 135 (1950) ........................................12, 13
Filarsky v. Delia,
566 U.S. 377 (2012) .................. 19-22, 26, 27, 29-31
Helstoski v. Meanor,
442 U.S. 500 (1979) ............................................. 19
Houston Cmty. Hosp. v.
Blue Cross & Blue Shield of Tex., Inc.,
481 F.3d 265 (5th Cir. 2007) ..........................17, 27
In re World Trade Center
Disaster Site Litigation,
521 F.3d 169 (2d Cir. 2008) ...................... 13, 15, 30
Martin v. Halliburton,
618 F.3d 476 (5th Cir. 2010) ............................... 17
McMahon v. Presidential Airways, Inc.,
502 F.3d 1331 (11th Cir. 2007) .......................12, 30
Menocal v. GEO Grp., Inc.,
113 F.Supp.3d 1125 (D. Colo. 2015) ...................... 8
Mitchell v. Forsyth,
472 U.S. 511 (1985) .................. 19-21, 23-26, 28, 30
Nestle USA, Inc. v. Doe,
593 U.S. 628 (2021) ............................................. 16
viii
Nixon v. Fitzgerald,
457 U.S. 731 (1982) .................................. 19, 21, 23
Oscarson v. Office of Senate Sergeant at Arms,
550 F.3d 1 (D.C. Cir. 2008) .................................. 18
Posada v. Cultural Care Inc.,
66 F.4th 348 (1st Cir. 2023) ...........................12, 18
Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc.,
506 U.S. 139 (1993) ......................... 3, 11, 21, 26-28
Pullman Construction Industries, Inc. v.
United States,
23 F.3d 1166 (7th Cir. 1994) ..........................15, 27
Taylor Energy, LLC v. Luttrell,
3 F.4th 172 (5th Cir. 2021) .................................... 2
Will v. Hallock,
546 U.S. 345 (2006) ........................................11, 32
Wyatt v. Cole,
504 U.S. 158 (1992) ............................................. 29
Yearsley v. W.A. Ross Constr. Co.,
309 U.S. 18 (1940) ...................... 1-3, 12, 13, 17, 21,
....................................................... 24-26, 29, 30, 32
CONSTITUTIONAL PROVISIONS
U.S. Const. art I, § 8, cl. 4 ...................................... 32
U.S. Const. amend. XI ............................. 3, 19, 21, 34
STATUTES, RULES AND REGULATIONS
8 C.F.R. § 235.3(e) .................................................... 6
6 U.S.C. § 542 ........................................................... 5
ix
6 U.S.C. § 112(b)(2)............................................. 6, 32
8 U.S.C. § 1231(g) ................................................. 4, 5
8 U.S.C. § 1231(g)(1) ........................................4, 5, 32
8 U.S.C. § 1231(g)(2) ........................................... 6, 33
8 U.S.C. § 1555(d) ..................................................... 8
18 U.S.C. § 1589 ....................................................... 8
18 U.S.C. § 1595 ....................................................... 8
28 U.S.C. § 1254(1) ................................................... 4
28 U.S.C. § 1291 ................................................. 9, 11
42 U.S.C. § 1983 ..................................................... 20
Colo. Rev. Stat. § 8-6-101, et seq. ............................. 8
S. Ct. R. 10(c) .......................................................... 28
Stafford Act, Pub. L. No. 93-288, 88 Stat. 143 ....... 13
OTHER AUTHORITIES
Publ. L. No. 95-431, 92 Stat. 1021 (1978) ................ 8
U.S. Immigration & Customs Enforcement,
2008 PBNDS, “Voluntary Work Program”,
available at https://www.ice.gov/doclib/dro/
detention-standards/pdf/voluntary_work_
program.pdf ....................................................... 7, 8
U.S. Immigration & Customs Enforcement,
National Detainee Handbook 2024, available
at
https://www.ice.gov/doclib/detention/
ndHandbook/ndhEnglish.pdf ................................ 7
x
U.S. Immigration & Customs Enforcement,
Performance Based National Detention
Standards 2011 (rev. Dec. 2016), available at
https://www.ice.gov/doclib/detentionstandards/2011/pbnds2011r2016.pdf ................. 6-8
PETITION FOR WRIT
OF CERTIORARI
Respondents disagree with America’s immigration policy. That, of course, is their right. But rather than seek legislative changes to federal immigration policy, Respondents have turned to the
courts in an effort to cripple the implementation of
the policies they disfavor. Sovereign immunity prevents them from suing the government directly, so
they have instead sued the government’s agent.
This maneuver is not new. The Court has long recognized that “[t]he action of the agent is the act of
the government.” Yearsley v. W.A. Ross Constr. Co.,
309 U.S. 18, 22 (1940) (quotation omitted). As such,
“there is no ground for holding its agent liable who
is simply acting under the authority thus validly
conferred.” Ibid.
This simple insight is the basis for derivative
sovereign immunity: “‘[G]overnment contractors obtain certain immunity in connection with work
which they do pursuant to their contractual undertakings with the United States.’” Campbell-Ewald
Co. v. Gomez, 577 U.S. 153, 166 (2016) (quoting
Brady v. Roosevelt S.S. Co., 317 U.S. 575, 583
(1943)). Derivative sovereign immunity is available
where the contractor satisfies two conditions announced in Yearsley: (1) “‘what was done was within
the constitutional power of Congress’” and (2) the
2
contractor “performed as the Government directed.”
Id. at 167 (quoting Yearsley, 309 U.S. at 20).
Here, GEO operates an immigration detention
facility pursuant to a contract with Immigration
and Customs Enforcement (“ICE”). The parties disagree whether GEO’s implementation of ICE’s detainee housekeeping requirements and voluntary
work program was authorized and directed by the
federal government. The district court concluded
that it was not and denied GEO’s claim to derivative
sovereign immunity, relying on a Ninth Circuit case
that no other circuits have embraced and several
have rejected as inconsistent with this Court’s precedent. Compare App. 73a with, e.g., Taylor Energy,
LLC v. Luttrell, 3 F.4th 172, 175–76 (5th Cir. 2021).
The Tenth Circuit did not reach GEO’s entitlement to derivative sovereign immunity, however,
because it dismissed GEO’s appeal. It concluded
that the denial of derivative sovereign immunity is
not a collateral order for which appellate review is
available under Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541 (1949). That holding makes the
Tenth Circuit the eighth circuit court to weigh in on
whether denials of derivative sovereign immunity
are appealable collateral orders. The circuits are
now split 5-3 on this question. The current division
among the circuits means that government contractors who operate nationwide, like GEO, can vindicate their immunity in some cases but not others,
depending only on where the case was filed.
3
For those cases that arise in one of the five circuits that do not allow collateral-order review, a
government contractor must endure the expense
and distraction of litigation—and potential financial
liabilities for continuing to perform its government
contracts—before an appellate court will consider
whether the suit was permitted in the first place.
That possibility is inconsistent with the very concept of immunity, the value of which is “effectively
lost as litigation proceeds past motion practice.”
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 145 (1993). This Court
has therefore held that the denial of numerous
forms of immunity is immediately appealable: absolute immunity, qualified immunity, and Eleventh
Amendment immunity. Contractors who faithfully
carry out the government’s work should enjoy the
same ability to obtain interlocutory review of district court orders holding “either that [the contractor] exceeded his authority or that it was not validly
conferred.” Yearsley, 309 U.S. at 21. The alternative is a legal backdoor through which activists can
undermine policies with which they disagree by targeting contractors with lawsuits they could never
bring against the government directing those contractors’ actions.
This Court should grant review to resolve a deep
and consequential split among the circuits and provide contractors with the same appellate rights it
has assured defendants claiming other forms of immunity—without which derivative sovereign immunity loses its fundamental value, and the gov-
4
ernment’s ability to function suffers as much as the
contractor that must defend against a fatuous lawsuit.
OPINIONS BELOW
The decision by the Court of Appeals for the
Tenth Circuit dismissing the appeal for lack of jurisdiction is available at 2024 WL 4544184 and reproduced at App. 1a. The district court decision is
reported at 635 F. Supp. 3d 1151 and reproduced at
App. 32a.
JURISDICTION
The Tenth Circuit issued its decision on October
22, 2024. App. 1a. This Court has jurisdiction under 28 U.S.C. § 1254(1).
PERTINENT STATUTORY PROVISIONS
The Immigration and Nationality Act provides
for housing non-citizens detained in connection with
removal proceedings:
(g) Places of detention
(1) In general
The Attorney General shall arrange for
appropriate places of detention for aliens detained pending removal or a decision on removal. When United States Government facilities are unavailable or facilities adapted
or suitably located for detention are unavailable for rental, the Attorney General may
expend from the appropriation “Immigration
and Naturalization Service-Salaries and Ex-
5
penses”, without regard to section 6101 of title 41, amounts necessary to acquire land
and to acquire, build, remodel, repair, and
operate facilities (including living quarters
for immigration officers if not otherwise
available) necessary for detention.
(2) Detention facilities of the Immigration
and Naturalization Service
Prior to initiating any project for the construction of any new detention facility for the
Service, the Commissioner shall consider the
availability for purchase or lease of any existing prison, jail, detention center, or other
comparable facility suitable for such use.
8 U.S.C. § 1231(g).
STATEMENT OF THE CASE
I. Regulatory and Factual Background
Congress has adopted volumes of laws establishing who may enter the United States and on what
terms. It created ICE to implement those laws. 6
U.S.C. § 542. And, on the specific issue of detention, it provided that “[t]he Attorney General shall
arrange for appropriate places of detention for aliens detained pending removal or a decision on removal.” 8 U.S.C. § 1231(g)(1). Those “appropriate
places” include both government facilities and private facilities operated pursuant to a contract between ICE and businesses like GEO. In fact, Congress directed that, before building a new government-run facility, ICE “shall consider the availabil-
6
ity for purchase or lease of any existing prison, jail,
detention center, or other comparable facility suitable for such use.” 8 U.S.C. § 1231(g)(2). Elsewhere,
Congress gave the Secretary of Homeland Security
“authority to make contracts . . . as may be necessary and proper to carry out the Secretary’s responsibilities.” 6 U.S.C. § 112(b)(2).
Exercising that authority, ICE contracted with
GEO to provide the building and associated secure
residential care services at the Aurora Immigration
Processing Center (“AIPC”) in Aurora, Colorado.
GEO has owned and operated AIPC pursuant to
contracts with ICE since 2004. Each of those contracts required compliance with ICE’s PerformanceBased National Detention Standards (“PBNDS”) or
the predecessor Immigration and Naturalization
Service’s National Detention Standards (“NDS”).
The PBNDS is an exhaustive, 450-page document
directing every aspect of immigration detention.
See U.S. Immigration & Customs Enforcement, Performance Based National Detention Standards 2011
(rev. Dec. 2016), available at https://www.ice.gov/
doclib/detention-standards/2011/pbnds2011r
2016.pdf [hereinafter 2011 PBNDS]. Compliance
with the PBNDS is not only a contractual imperative, but also mandated by regulation. 8 C.F.R.
§ 235.3(e). Among the PBNDS provisions are two
requirements at issue in this litigation: a detainee
housekeeping requirement that includes a schedule
of punishments for noncompliance and a Voluntary
Work Program (“VWP”) for which participants receive a stipend of at least $1 per day.
7
The ICE detainee housekeeping requirement
mandates that detainees maintain their bunk and
housing unit in an orderly and sanitary condition.
This requirement is not GEO’s invention. It appears in the PBNDS, the ICE National Detainee
Handbook, and the ICE-approved AIPC Handbook.
E.g., U.S. Immigration & Customs Enforcement,
National Detainee Handbook 2024, available at
https://www.ice.gov/doclib/detention/ndHandbook/nd
hEnglish.pdf (“You must keep areas that you use
clean, including your living area and any generaluse areas that you use.”). ICE also prescribes an
escalating scale of punishments for refusal to comply with the housekeeping requirements. The operative 2011 PBNDS, for example, provides that “[a]ll
facilities shall have graduated scales of offenses and
disciplinary consequences as provided in this section.” App. 134a. The PBNDS classifies “[r]efusing
to clean assigned living area” as a “high moderate”
offense. App. 141a. On the following pages, it lists
13 graduated punishments for “high moderate” offenses. App. 144a.
Unlike housekeeping, the VWP is, as its name
suggests, a voluntary program designed to prevent
idleness and improve operations at the facility. ICE
requires a VWP at its contract facilities and directs
the amount of the stipend paid to volunteers. The
2000 NDS and 2008 PBNDS stated that the stipend
“is $1 per day.” E.g., U.S. Immigration & Customs
Enforcement, 2008 PBNDS, “Voluntary Work
Program”,
at
4,
available
at
https://www.ice.gov/doclib/dro/detention-standards
8
/pdf/voluntary_work_program.pdf. In 2011, the updated PBNDS stated that the stipend is “at least
$1.00 (USD) per day.” 2011 PBNDS at 407. At its
own facilities, ICE pays exactly $1 per day, which is
also the amount Congress appropriates to reimburse
contractors like GEO. See 8 U.S.C. § 1555(d); Publ.
L. No. 95-431, 92 Stat. 1021 (1978). At all relevant
times, GEO complied with the requirements by paying VWP participants at the AIPC $1 per day.
II. Proceedings Below
On October 22, 2014, Plaintiffs commenced this
class action, alleging GEO’s operation of the AIPC
under its contracts with ICE involved: (1) noncompliance with the Colorado Minimum Wages of
Workers Act, Colo. Rev. Stat. § 8-6-101, et seq.; (2)
violations of the forced labor provision of the Trafficking Victims Protection Act (“TVPA”), 18 U.S.C.
§§ 1589, 1595; and (3) unjust enrichment. GEO
filed a motion to dismiss, which the district court
granted as to the alleged violations of the Colorado
minimum wage claim. Menocal v. GEO Grp., Inc.,
113 F.Supp.3d 1125, 1135 (D. Colo. 2015).
The district court then certified two classes—one
alleging unjust enrichment based on the VWP, and
one claiming that enforcement of the ICE detainee
housekeeping requirement constitutes forced labor
in violation of the TVPA.
The parties then cross-moved for summary
judgment. Relevant here, GEO asserted that derivative sovereign immunity prevented suit for the ac-
9
tions in question, which it argued were authorized
and directed by ICE. Plaintiffs also sought summary judgment on the issue of derivative sovereign
immunity, arguing that GEO was not immune because it had too much discretion in how it implemented the ICE detainee housekeeping requirement
and whether it paid more than $1 per day to participants in the VWP.
On October 18, 2022 the district court not only
denied GEO’s motion for summary judgment, but
affirmatively granted Plaintiffs’ motion. App. 32a.
It adopted the Ninth Circuit’s test in Cabalce v.
Thomas E. Blanchard & Assocs., 797 F.3d 720 (9th
Cir. 2015), to conclude that, to avail itself of derivative sovereign immunity, GEO had to show that it
had “no discretion” regarding the VWP stipend.
App. 73a. Under that approach, even if GEO performed “in compliance with all federal directions,”
Campbell-Ewald, 577 U.S. at 167 n.7, GEO lost
immunity because the government did not prohibit
it from paying more. App. 76a. Applying the same
standard, the district court denied derivative sovereign immunity for the TVPA housekeeping claim on
the theory that GEO was “not ‘required’ by its contracts with ICE” to tell detainees that refusal to
clean their living areas could result in solitary confinement. App. 69a–73a.
GEO appealed to the Tenth Circuit, where Plaintiffs moved to dismiss the appeal for lack of a final
judgment under 28 U.S.C. § 1291. After briefing
and argument on both jurisdiction and the merits of
10
whether GEO’s actions were authorized and directed by the government, the Tenth Circuit dismissed the case for lack of appellate jurisdiction. In
so holding, it became the eighth circuit to rule on
whether orders denying derivative sovereign immunity are immediately appealable under the collateral-order doctrine.
REASONS FOR GRANTING THE PETITION
The Tenth Circuit’s decision is the latest addition to a deep division in the circuit courts as to
whether a denial of derivative sovereign immunity
is an appealable collateral order. The Second,
Sixth, and Eleventh Circuits hold that it is; the
Fourth, Fifth, Seventh, Ninth, and now Tenth Circuits hold that it is not. See Part I infra. Three of
those courts have joined the split in the five years
since this Court called for the views of the Solicitor
General on the same issue. CACI Premier Tech. v.
al Shimari, 141 S. Ct. 2850 (2021) (denying certiorari). And they have joined on different sides of the
split. Only this Court can resolve the division in the
lower courts on an issue that recurs often and in
every jurisdiction where the government relies on
contractors to carry out key federal or State functions.
11
I.
The Tenth Circuit’s Decision Deepens a
Circuit Split on the Appealability of
Orders Denying Claims of Derivative
Sovereign Immunity.
Under 28 U.S.C. § 1291, courts of appeals have
jurisdiction over appeals “from all final decisions of
the district courts.” This Court has adopted a “practical” construction of Section 1291 that recognizes
the “authority of the Courts of Appeals” to exercise
“appellate jurisdiction over a narrow class of decisions that do not terminate the litigation, but are
sufficiently important and collateral to the merits
that they should nonetheless be treated as final.”
Will v. Hallock, 546 U.S. 345, 347 (2006) (internal
quotation marks omitted). These collateral orders
are “immediately appealable” because they “finally
determine claims of right separable from, and collateral to, rights asserted in the action,” and are
“too important to be denied review and too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated.” Cohen, 337 U.S. at 546. The Court applies three criteria to assess whether an order qualifies for immediate review under the collateral-order
doctrine: it must (i) be “effectively unreviewable on
appeal from a final judgment,” (ii) “conclusively determine the disputed question,” and (iii) involve a
claim “separable from . . . rights asserted in the action.” Puerto Rico, 506 U.S. at 144.
The Tenth Circuit’s holding that the collateralorder doctrine does not apply to contractors’ claims
12
of derivative sovereign immunity joins four circuits
that share that view and conflicts with three circuits that have held to the contrary.
The Second, Sixth, and Eleventh Circuits allow
an immediate appeal, while the Fourth, Fifth, Seventh, Ninth, and now Tenth Circuits do not. The
First Circuit recently “bypass[ed]” the issue but confirmed that “[t]here is no consensus among our sister circuits as to whether Yearsley confers an immunity from suit, the denial of which is appealable
under the collateral order doctrine.” Posada v. Cultural Care Inc., 66 F.4th 348, 355–56 & n.5 (1st Cir.
2023) (collecting cases). “No consensus” is an understatement. The circuits are divided between two
irreconcilable camps. Only this Court can assure
that the same rule applies nationwide to afford—or
deny—the government’s agents an appeal before
enduring a trial when they are denied derivative
sovereign immunity for carrying out the government’s directives.
1. Three circuits have held that the denial of derivative sovereign immunity is immediately appealable under the collateral-order doctrine.
a. In McMahon v. Presidential Airways, Inc.,
502 F.3d 1331 (11th Cir. 2007), a military contractor
argued that under Yearsley, it was immune from
suit by servicemembers “for injuries that ‘arise out
of or are in the course of activity incident to [military] service.’” Id. at 1341 (quoting Feres v. United
States, 340 U.S. 135, 146 (1950)) (alteration in original). As the Eleventh Circuit summarized the doc-
13
trine, “[Defendant] claims that it is entitled to claim
the whole of the government’s Feres immunity under the theory of derivative sovereign immunity,”
which “had its origin in Yearsley.” Id. at 143. The
court went on to apply the three-part test from Cohen to conclude that the district court’s denial of the
contractor’s motion to dismiss was immediately appealable under the collateral-order doctrine because
it implicated a “substantial claim to immunity from
suit.” Id. at 1339–1340.
b. Likewise, in In re World Trade Center Disaster Site Litigation, 521 F.3d 169, 176 (2d Cir. 2008),
the Second Circuit considered three bases for sovereign immunity that the contractor sought to invoke
“derivatively,” including common-law sovereign
immunity and the government’s discretionary function immunity under the Stafford Act, Pub. L. No.
93-288, 88 Stat. 143, for claims related to disaster
relief. After a lengthy analysis distinguishing circuit precedents on the other side of the split, the
Second Circuit held that the denial of the defendants’ motion to dismiss was appealable under the
collateral-order doctrine. See id. at 187–193. The
Second Circuit ultimately held that the contractor
was not entitled to derivative sovereign immunity,
highlighting the distinction between appealability
and the underlying merits. Id. at 201. This Petition concerns only the former issue of appealability.
c. Most recently, the Sixth Circuit held in ACT
v. Worldwide Interactive Network, Inc., that the denial of “derivative sovereign immunity” is immedi-
14
ately appealable under the “collateral-order doctrine.” 46 F.4th 489, 496–498 (6th Cir. 2022). The
Sixth Circuit reasoned that “the immunity government contractors enjoy derives from whatever immunity the relevant government would have ‘in the
same situation.’” Id. at 498 (citing Adkisson v. Jacobs Eng’g Grp., 790 F.3d 641, 645 (6th Cir. 2015)).
Because the government would have “enjoy[ed] an
immunity from suit itself, the denial of which would
be immediately appealable,” so too must a contractor acting at the government’s behest. Ibid. It made
no difference that the contractor worked at the behest of a State rather than the federal government;
the key question is whether the “relevant government” would be immune “in the same situation.” Id.
at 498. ACT thus illustrates how derivative sovereign immunity—and the immediate appealability of
its denial—is an issue for both federal and state
contractors.
Had the current case arisen in any of these circuits, GEO could have obtained immediate review of
the district court order denying its motion—and
granting Respondents’ motion—for summary judgment. In this case, the basis for that appeal was a
strictly legal challenge to the standard employed by
the district court. The Second, Sixth, and Eleventh
Circuits would answer that question before putting
GEO through the ordeal of a trial.
2. On the other side of the split, the Fourth,
Fifth, Seventh, Ninth, and now Tenth Circuits have
held that the denial of derivative sovereign immuni-
15
ty is not immediately appealable under the collateral-order doctrine.
a. The earliest decision on this side of the split
is also the most expansive. The Seventh Circuit rejected collateral-order review of an order denying
derivative sovereign immunity after declaring that
there is no sovereign immunity for the federal government itself, meaning that there was no immunity for the contractor to derive. Pullman Construction Industries, Inc. v. United States, 23 F.3d 1166,
1168 (7th Cir. 1994). It concluded that “[f]ederal
sovereign immunity today is nothing but a condensed way to refer to the fact that monetary relief
is permissible only to the extent Congress has authorized it.” Ibid.
Years later, the Second Circuit, on the other side
of the split, discounted the holding in Pullman as “a
sweeping and entertaining analysis.” World Trade
Ctr., 521 F.3d at 191. Pullman’s parallel treatment
of the government’s own immunity, while logical insofar as contractors derive their immunity from the
government’s immunity, Adkisson, 790 F.3d at 645,
is a troubling aspect of the circuit split in these cases. The relationship between derivative sovereign
immunity and the government’s antecedent sovereign immunity—both federal and state—only elevates the importance of resolving this rapidly expanding circuit split.
b. In Al Shimari v. CACI Premier Tech., Inc., the
Fourth Circuit dismissed a military contractor’s appeal seeking collateral-order review of the denial of
16
derivative sovereign immunity, stating: “[W]e have
never held, and the United States government does
not argue, that a denial of sovereign immunity or
derivative sovereign immunity is immediately reviewable on interlocutory appeal.” 775 F. App’x 758,
759–60 (4th Cir. 2019). Notable in this decision is
its application to “sovereign immunity or derivative
sovereign immunity.”
Ibid. (emphasis added).
Again, the parallel treatment is logical but reveals
the extreme position that circuits on this side of the
split are forced to adopt.
The defendant in Al Shimari petitioned this
Court for review to resolve a split that at that time
involved four circuits. See Pet. Cert. No. 19-648
(Nov. 15, 2019). This Court called for the views of
the Solicitor General, who confirmed the split and
agreed the question presented was worthy of review
but recommended holding the petition pending the
Court’s decision in Nestle USA, Inc. v. Doe, No. 19416, which had the potential to moot the plaintiffs’
claims in CACI. See CVSG Br. at 20–23, No. 19-648
(Aug. 26, 2020); see also id. at 1 (“If the Court’s decisions in Nestle and Cargill do not effectively eliminate [plaintiffs’] substantive claims in this case, the
Court should then grant the petition for a writ of
certiorari.” (emphasis added)). Ultimately, the
Court held CACI until it decided Nestle, 593 U.S.
628 (2021), and denied the CACI petition two weeks
later. The question whether orders denying derivative sovereign immunity are immediately appealable, however, is not moot, as the expanding circuit
split attests.
17
c. The Fifth Circuit has twice held that defendants have no right to an immediate collateral-order
appeal from the denial of derivative sovereign immunity. See Houston Cmty. Hosp. v. Blue Cross &
Blue Shield of Tex., Inc., 481 F.3d 265, 280 (5th Cir.
2007) (“[W]e hold that a denial of [derivative] federal sovereign immunity is not subject to immediate
review under the collateral order doctrine in the
present context.”); see also Martin v. Halliburton,
618 F.3d 476, 485 (5th Cir. 2010) (noting in one sentence that the court was bound by the earlier Houston Community Hospital decision).
d. The Ninth Circuit held the same in Childs v.
San Diego Family Hous. LLC, 22 F.4th 1092, 1098
(9th Cir. 2022): “[T]he denial of a motion to dismiss
on the ground of derivative sovereign immunity under Yearsley is not immediately appealable under
the collateral order doctrine.” Like the Fourth and
Seventh Circuits, the Ninth Circuit’s holding on derivative sovereign immunity parallels its refusal to
hear collateral-order appeals by the government itself, as it held in Alaska v. United States, 64 F.3d
1352, 1355 (9th Cir. 1995); see also Childs, 22 F.4d
at 1097 (“[W]e have previously held that the collateral order doctrine does not apply to orders denying
assertions of sovereign immunity of the federal sovereign itself[.]”).
e. The Tenth Circuit decision below “conclude[d]
that a district court’s order denying application of
the Yearsley doctrine is not subject to interlocutory
appeal.” App. 3a. It did so without acknowledging
18
the deep split that other circuits have recognized.
E.g., Posada, 66 F. 4th at 355–56 & n.5 (“no consensus”); ACT, 46 F.4th at 497 (“no uniform answer”);
see also Oscarson v. Office of Senate Sergeant at
Arms, 550 F.3d 1, 2–3 (D.C. Cir. 2008) (noting the
“apparent split in the circuits over whether denials
of claims of federal sovereign immunity may ever
qualify for interlocutory review”).
*
*
*
This Court has already expressed an interest in
resolving the division among circuit courts over the
immediate appealability of orders denying derivative sovereign immunity. Since the Court called for
the views of the Solicitor General in CACI five years
ago, the split has only worsened, with the Ninth and
Tenth Circuits holding that a denial of derivative
sovereign immunity is not a collateral order, and
the Sixth Circuit holding that it is. Because the division in the lower courts shows no signs of moderating, the Court should grant the Petition and resolve this important question.
II.
The Decision Below Conflicts with this
Court’s Collateral-Order Jurisprudence.
This Court has yet to weigh in on whether denials of derivative sovereign immunity are collateral
orders. But it has provided ample guidance in the
context of other forms of immunity. In those cases,
the Court has uniformly held that immediate appeal
is available under Cohen. The decision below avoided citing this line of precedents and therefore de-
19
clared that those who carry out the government’s
directives must endure a full trial before they can
obtain appellate review. That outcome is inconsistent with this Court’s precedents, which have
recognized that denials of absolute immunity, qualified immunity, and States’ Eleventh Amendment
immunity are collateral orders from which immediate appeal is permitted.
In Nixon v. Fitzgerald, 457 U.S. 731, 741 (1982),
the Court considered a collateral-order appeal of an
order denying the President’s motion for summary
judgment on the basis of absolute immunity. It held
that the order was appealable, noting that “[a]t
least twice before this Court has held that orders
denying claims of absolute immunity are appealable
under the Cohen criteria.” Id. at 742 (citing Helstoski v. Meanor, 442 U.S. 500 (1979) (absolute immunity under the Speech and Debate Clause) and
Abney v. United States, 431 U.S. 651 (1977) (absolute immunity against double jeopardy)). The Court
then disposed of the one Cohen factor that the lower
court had found wanting, namely the presence of a
“serious and unsettled question of law,” id. at 743,
and proceeded to address the merits of the President’s assertion that he was entitled to absolute
immunity.
Likewise, the Court has at least twice held that
orders denying qualified immunity are immediately
appealable collateral orders. Mitchell v. Forsyth,
472 U.S. 511 (1985); see also Filarsky v. Delia, 566
U.S. 377 (2012). The Mitchell Court framed the
20
question as “whether qualified immunity shares
th[e] essential attribute of absolute immunity—
whether qualified immunity is in fact an entitlement not to stand trial under certain circumstances.” 472 U.S. at 525. It resolved that question by
looking to the nature of qualified immunity and the
purposes it serves.
Filarsky took the additional step of applying the
rule from Mitchell to a private defendant hired by
the government to perform a governmental function—i.e., the same situation presented in derivative sovereign immunity. Specifically, the defendant in Filarsky was a private lawyer hired by a fire
department to investigate whether an employee was
malingering in order to be paid while not working.
566 U.S. at 381. When the employee sued both his
government supervisors and the lawyer for constitutional violations under 42 U.S.C. § 1983, the Ninth
Circuit affirmed summary judgment in favor of all
defendants except the contractor, whom it reasoned
was not entitled to qualified immunity because he
was not a government employee. Id. at 382. This
Court reviewed “whether an individual hired by the
government to do its work is prohibited from seeking such immunity.” Id. at 380. It noted that “the
common law did not draw a distinction between
public servants and private individuals engaged in
public service” when extending immunity from suit.
Id. at 387. That makes sense because “[t]he government’s need to attract talented individuals is not
limited to full-time public employees,” and talented
candidates will decline to perform essential gov-
21
ernment work if not afforded the “same immunity”
as public employees. Id. at 390.
Finally, the Court built on Nixon and Mitchell to
hold that denials of Eleventh Amendment immunity
are immediately appealable under the collateralorder doctrine in Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993).
There, a private utility asserted that it was an arm
of the Territory and therefore immune from suit for
an alleged breach of contract. The district court
disagreed, denying the defendant’s motion to dismiss, in what the First Circuit deemed was not a
collateral order. Id. at 142. This Court reversed. It
held that “[o]nce it is established that a State and
its ‘arms’ are, in effect, immune from suit in federal
court, it follows that the elements of the Cohen collateral order doctrine are satisfied.” Id. at 144.
The Tenth Circuit’s conclusion withholding collateral-order review of an order denying derivative
sovereign immunity is irreconcilable with these
precedents. “‘[G]overnment contractors obtain certain immunity in connection with work which they
do pursuant to their contractual undertakings with
the United States.’” Campbell-Ewald, 577 U.S. at
166 (quoting Brady v. Roosevelt S.S. Co., 317 U.S.
575, 583 (1943)). Earning that immunity requires
that two conditions be satisfied: (1) the work that
“‘was done was within the constitutional power of
Congress,’” and (2) the contractor “performed as the
Government directed.” Id. at 167 (quoting Yearsley,
309 U.S. at 20). Without one or both of those condi-
22
tions, a contractor loses the “government’s embracive immunity,” as occurred in Campbell-Ewald
when the contractor broke with the government’s
instructions. Id. at 166. Here, the parties dispute
whether the federal government directed GEO’s actions with sufficient specificity. But the current
question is whether GEO is entitled to review of a
district court order withholding derivative sovereign
immunity before enduring a trial.
The immediate appealability of an order denying
derivative sovereign immunity follows almost a fortiori from the foregoing precedents. In each circumstance, the Court concluded that the relevant immunity satisfied all three Cohen factors. Its rationales for reaching that conclusion apply with full
force in the current context for the reason articulated in Filarsky: the common law draws no distinction
between the government and its contractors, and
refusing to protect derivative immunity risks leaving contractors “holding the bag—facing full liability for actions taken in conjunction with government
employees who enjoy immunity for the same activity.” 566 U.S. at 391. Just as “the immunity government contractors enjoy derives from whatever
immunity the relevant government would have in
the same situation,” ACT, 46 F.4th at 498, the logic
of this Court’s serial decisions upholding immediate
appealability for different forms of immunity highlights the Tenth Circuit’s error below.
Applying the Cohen factors, neither party disputes that the district court’s ruling denying GEO’s
23
motion and granting Plaintiffs’ motion for summary
judgment on derivative sovereign immunity “conclusively determine[s] the disputed question.”
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468
(1978); App. 18a (noting no dispute on this factor).
In particular, the denial of qualified immunity “conclusively determines” the issue because “the court’s
denial of summary judgment finally and conclusively determines the defendant’s claim of right not to
stand trial.” Mitchell, 472 U.S. at 527 (citing Abney,
431 U.S. at 659). That right is lost as soon as summary judgment is denied.
The decision below focused on a different Cohen
factor, namely whether derivative sovereign immunity is “separable from” the underlying merits of
Plaintiffs’ claims. Cohen, 337 U.S. at 546; App.
20a–30a. This Court has explained the separateness factor as requiring that the issue appealed “is
not an ingredient of the cause of action and does not
require consideration with it.” Id. at 546–547. In
Mitchell, the Court analyzed separateness in the
context of an immunity. It reasoned that Cohen’s
requirement that the collateral order be “conceptually distinct from the merits of the plaintiff’s claim”
is satisfied because the “appellate court . . . need not
consider the correctness of the plaintiff’s version of
the facts.” 472 U.S. at 527–528. Thus, surveying
precedents like Nixon and Abney, the Court concluded that “a question of immunity is separate
from the merits of the underlying action for purposes of the Cohen test even though a reviewing court
must consider the plaintiff’s factual allegation in re-
24
solving the immunity issue.” Id. at 528–29 (emphases added).
The Tenth Circuit adopted a different and more
extreme test, denying review because “[i]n our view,
there is overlap between the second Yearsley
prong—viz., whether the government directed the
contractor’s challenged actions—and the merits of a
plaintiff’s claims challenging the lawfulness of those
actions.” App. 20a (emphasis added). That is precisely the approach the Mitchell dissent advanced
and the Court rejected. As the Court explained, the
view that “any factual overlap . . . is fatal to a
claim of immediate appealability” is incorrect because it “fails to account for our rulings on appealability of denials of claims of double jeopardy and absolute immunity.” 472 U.S. at 529 n.10 (emphasis
added). Both absolute immunity and double jeopardy—and, after Mitchell, qualified immunity—
“require an inquiry into whether the plaintiff’s (or,
in the double jeopardy situation, the Government’s)
factual allegations state a claim that falls outside
the scope of the defendant’s immunity.” Ibid. The
Mitchell Court thus rejected “factual overlap” as
somehow defeating the second Cohen factor. The
Tenth Circuit held exactly the opposite. It missed
the fact that every form of immunity for which this
Court has authorized collateral-order review entails
a certain amount of factual overlap between the defendant’s eligibility for immunity and the merits of
the plaintiff’s claims. Mitchell could not have been
more clear that this overlap is not a problem under
Cohen. Ibid.
25
Understood through the correct lens, there is no
question that a contractor’s entitlement to derivative sovereign immunity is distinct from the merits
of the underlying claims. Derivative sovereign immunity depends on the two factors from Yearsley:
whether (1) “‘what was done was within the constitutional power of Congress,’” and (2) the contractor
“performed as the Government directed.” CampbellEwald, 577 U.S. at 167 (quoting Yearsley, 309 U.S.
at 20). Here, the district court found fault with the
second factor, but the question of whether ICE directed GEO to perform certain actions—i.e., direct
detainees to clean up their living areas, or implement the VWP in accordance with PBNDS requirements—is distinct from whether GEO’s actual performance of its duties was in any manner wrongful.
The essence of immunity is that the government
and its employees or agents might violate the law,
but a court need not reach the merits because the
defendant is not susceptible to suit. The basic operation of immunity thus illustrates the separateness
of a defendant’s eligibility from the underlying merits. The Tenth Circuit only reached a contrary conclusion by adopting the theory from the Mitchell
dissent that any factual “overlap” precludes collateral-order review.
Having concluded that the question of GEO’s
immunity overlapped with the merits of Respondents’ claims, the Tenth Circuit declined to reach the
question of whether derivative sovereign immunity
is, in fact, an immunity or merely a defense. App.
2a. That sequence—determining separateness be-
26
fore immunity—is already problematic. It inverts
this Court’s ruling in Mitchell and Puerto Rico,
which prioritized the resolution of whether a defendant enjoyed an immunity: “Once it is established that a State and its ‘arms’ are, in effect, immune from suit in federal court, it follows that the
elements of the Cohen collateral order doctrine are
satisfied.” Puerto Rico, 506 U.S. at 144. Thus the
Mitchell Court noted that if qualified immunity is,
in fact, an immunity from suit, it “easily meets” the
remaining Cohen factors. 472 U.S. at 527. For the
class of collateral-order cases involving assertions of
immunity, the determination of immunity is primary and drives all other Cohen factors.
And, although the Tenth Circuit avoided the issue, there is no question that derivative sovereign
immunity is an immunity under this Court’s precedents. The circuits that have permitted collateralorder appeals universally recognize that derivative
sovereign immunity is an immunity from suit. The
Sixth Circuit, for example, reasoned that a contractor performing at the government’s direction—the
condition for derivative sovereign immunity—
derives the same immunity as the government.
ACT, 46 F.4th at 497. That reflects this Court’s
holding in Campbell-Ewald, which found a contractor ineligible for “the government’s embracive immunity” because it did not meet the criteria from
Yearsley—i.e., (1) “what was done was within the
constitutional power of Congress,” and (2) the contractor “performed as the Government directed.”
577 U.S. at 166–167. Likewise in Filarsky, the
27
Court noted that a contractor enjoys “the same immunity” as government actors would enjoy. 566
U.S. at 390. Recognizing derivative sovereign immunity as an immunity therefore means that the
“elements of the Cohen collateral order doctrine are
satisfied” because the value of an immunity is “lost
as litigation proceeds past motion practice.” Puerto
Rico, 506 U.S. at 144–145.
The circuits reaching the opposite conclusion
vary in their justifications, but they are all inconsistent with this Court’s precedent. The Seventh
Circuit in Pullman, for example, denied that sovereign immunity is actually an immunity from suit
rather than a defense to money damages: “[f]ederal
sovereign immunity today is nothing but a condensed way to refer to the fact that monetary relief
is permissible only to the extent Congress has authorized it.” 23 F.3d at 1168. The Fifth Circuit
simply adopted the Seventh Circuit’s reasoning.
Houston Community Hosp., 481 F.3d at 277 (holding
that the “sovereign immunity of the United States is
not a right not to be sued”). This Court begs to differ. FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”). The
premise for the Seventh and Fifth Circuits’ decisions denying immediate appeal based on adequate
appeal after a final judgment is therefore hopelessly
flawed.
The Fourth Circuit’s reasoning makes even less
sense. It recognizes that “derivative sovereign im-
28
munity . . . confers jurisdictional immunity from
suit.” Cunningham v. Gen. Dynamics Corp., 888
F.3d 640, 650 (4th Cir. 2018). That insight, combined with this Court’s holding in Puerto Rico,
should suffice to warrant immediate review. 506
U.S. at 144 (“Once it is established that [defendants] are, in effect, immune from suit in federal
court, it follows that the elements of the Cohen collateral order doctrine are satisfied.”). Instead, the
Fourth Circuit in CACI declared that neither “a denial of sovereign immunity [n]or derivative sovereign immunity” is immediately appealable. 775 F.
App’x at 760. It did not attempt to reconcile that
conclusion with the nature of immunity or this
Court’s precedents permitting immediate review.
The error in requiring parties that are immune
from suit to litigate through final judgment can be
more fully developed on the merits, but the failure
to realize that a claim of immunity is immediately
appealable and “easily meets” the other Cohen factors is a naked departure from this Court’s precedent. Additionally, the Tenth Circuit’s embrace of
the dissenting opinion in Mitchell to the exclusion of
the Court’s holding in that case augments the circuit split and presents another reason for the Court
to grant the Petition. S. Ct. R. 10(c).
29
III. The Decision Below Has Profound
Implications for Government Contractors
and Separation of Powers.
“Immunity ‘protect[s] government’s ability to
perform its traditional functions.’” Filarsky, 566
U.S. at 389 (quoting Wyatt v. Cole, 504 U.S. 158,
167 (1992)). That is no less true when the government performs those functions through contractors:
“The public interest in ensuring performance of government duties free from the distractions that can
accompany even routine lawsuits is also implicated
when individuals other than permanent government
employees discharge these duties.” Id. at 391. And,
as the government has increasingly come to rely on
contactors, the benefits of derivative sovereign immunity—including a prompt appeal before those
benefits are eroded—has become correspondingly
important.
In five circuits, contractors who satisfy Yearsley’s
criteria for derivative sovereign immunity lack the
benefits they would enjoy in three other circuits.
That circumstance permits activists opposed to federal policy to frustrate critical governmental functions with which they disagree. But using the
courts to cripple contractors’ execution of policies
adopted by the elected branches—and for which the
government would be immune if performing the
work directly—is an assault on the separation of
powers.
30
A. The Decision Below Burdens the
Performance of Government Functions.
This Court in Filarsky traced the long history of
contractors performing government functions and
their entitlement to the “same immunity” that government employees would enjoy when doing the
same work. 566 U.S. at 387; see generally id. at
384–89; Campbell-Ewald, 577 U.S. at 166–168;
Yearsley, 309 U.S. at 20.
That is no less true today, with the scope of government reaching ever broader and requiring workers with the necessary skills and correct incentives
to perform varied and extensive work. The government therefore relies on contractors. These nonemployees provide for the national defense, McMahon, 502 F.3d at 1341, respond to disasters, World
Trade Ctr, 521 F.3d at 176, and administer educational programs, ACT, 46 F.4th at 493. These are
important government functions that depend on recruiting talented people who could instead pursue
other work. Indeed, “the most talented candidates
will decline public engagements if they do not receive the same immunity enjoyed by their public
employee counterparts.” Filarsky, 566 U.S. at 390.
In particular, the Court noted in Mitchell that immediate appeal is necessary in the case of qualified
immunity to avoid “deterrence of able people from
public service.” 472 U.S. at 526.
And the burdens of litigation are no less serious
for contractors than they are for the government.
Just as sovereign immunity and qualified immunity
31
prevent “timidity” in the performance of government work, derivative sovereign immunity “ensur[es] that talented candidates are not deterred
from public service, and prevent[s] the harmful distractions from carrying out the work of government
that can often accompany damages suits.” Filarsky,
566 U.S. at 389–90. That is to say nothing of the
distraction for “the public employees with whom
they work.” Id. at 391. The current case is a prime
example. If GEO cannot appeal the denial of derivative sovereign immunity, both Plaintiffs’ case and
GEO’s defense will inevitably entail written discovery and hours of depositions of the ICE officials who
oversee the AIPC—those who maintain offices at
the facility as well as those ICE employees who reviewed, approved, and monitored GEO’s implementation of ICE’s requirements. In short, contractors
do not operate in a vacuum, and litigation against
them entails the same harm to government functioning as litigation against the government itself.
Given the ubiquity of government contracting
and the inevitable toll that denials of immunity
take on “[t]he public interest in ensuring performance of government duties free from the distractions” of litigation, Filarsky, 566 U.S. at 391, the
Court should grant review and vindicate the immunity that it has recognized for at least 80 years.
B. The Decision Below
Separation of Powers.
Offends
the
The availability of appellate review for orders
denying derivative sovereign immunity implicates
32
the constitutional separation of powers. Because
the Constitution entrusts Congress with regulating
immigration, and Congress has not waived the government’s sovereign immunity for immigration detention operations, immunity for those who carry
out immigration laws is “a value of high order” that
weighs in favor of immediate review. Will v. Hallock, 546 U.S. 345, 352 (2006).
The Constitution assigns to Congress the power
“[t]o establish an uniform Rule of Naturalization.”
U.S. Const. art I, § 8, cl. 4. And Congress has exercised that power to require the detention of certain
non-citizens and to confer broad authority on the
Attorney General and Secretary of Homeland Security to identify “appropriate places of detention,” including facilities operated under contract. 8 U.S.C.
§ 1231(g)(1); 6 U.S.C. § 112(b)(2). These actions are
squarely “within the constitutional power of Congress.” Yearsley, 309 U.S. at 20. The fact that
Yearsley integrates the question of congressional
power or “authority” into the merits of derivative
sovereign immunity highlights the connection between immunity and the separation of powers—the
courts ask whether Congress could constitutionally
undertake (or use a contractor to undertake) the
work in question; if so (and if the contractor performed as directed), then the courts’ inquiry is at an
end. No one in this litigation questions that Congress can constitutionally detain aliens pending removal or that it can authorize an agency of the federal government to use contractors to do so.
33
Neither Plaintiffs nor the courts below have contended that ICE would lack immunity for the same
alleged actions in carrying out immigration detention operations. Congress, not the courts, decides
whether and when the federal government waives
sovereign immunity. The Federalist No. 81 (Alexander Hamilton) (“It is inherent in the nature of
sovereignty not to be amenable to the suit of an individual without its consent.”). This Court has long
required that the waiver be “‘unequivocally expressed’ in statutory text.” FAA v. Cooper, 566 U.S.
284, 290 (2012). Here, Congress has done no such
thing. If the AIPC was an ICE-operated facility,
Plaintiffs unquestionably could not have stated a
claim against the federal government. But Congress chose to use contractors for immigration detention before operating facilities like the AIPC directly. 8 U.S.C. § 1231(g)(2). That decision is itself
a legislative choice within Congress’s constitutional
purview.
Vindicating the program that Congress validly
selected for enforcement of immigration laws goes to
the heart of the separation of powers. It is therefore
a matter of exceptional importance worthy of both
this Court’s review in the instant case and appellate
review in every case in which the government’s
agents are denied immunity.
CONCLUSION
The circuit courts’ 5-3 split on whether denials of
derivative sovereign immunity are immediately ap-
34
pealable cries out for this Court’s resolution. That
split has only intensified since the Court called for
the views of the Solicitor General five years ago.
The circuits permitting collateral-order review of
whether a contractor’s actions were authorized and
directed by the government are more faithful to this
Court’s decisions permitting immediate appeal of
orders denying absolute immunity, Eleventh
Amendment immunity, and qualified immunity.
Derivative sovereign immunity follows the same
pattern, and withholding review until after a final
judgment allows activists to frustrate federal immigration enforcement while imposing unnecessary
costs on governments across the nation. The Court
should therefore grant the petition for a writ of certiorari.
Respectfully submitted.
SCOTT A. SCHIPMA
THE GEO GROUP, INC.
4955 Technology Way
Boca Raton, FL 33431
January 13, 2025
DOMINIC E. DRAYE
Counsel of Record
WILLIAM E. EYE
CHRISTOPHER M. O’BRIEN
GREENBERG TRAURIG LLP
2101 L Street, N.W.
Washington, DC 20037
drayed@gtlaw.com
(202) 331-3100
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — ORDER AND JUDGMENT
OF THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT,
FILED OCTOBER 22, 2024 . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
DI S T R IC T OF C OL OR A D O, F I L E D
OCTOBER 18, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . 32a
APPENDIX C — 8 U.S.C. § 1231 . . . . . . . . . . . . . . . 131a
APPENDIX D — 28 U.S.C. § 1291 . . . . . . . . . . . . . . 132a
A P P E N DI X E — E XC E R P T S F R O M
PERFORM A NCE -BA SED NATIONA L
DETENTION STANDARDS 2011 . . . . . . . . . . . . 133a
1a
Appendix
A JUDGMENT OF
APPENDIX A — ORDER
AND
THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT, FILED OCTOBER 22, 2024
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 22-1409
(D.C. No. 1:14-CV-02887-JLK-MEH)
(D. Colo.)
ALEJANDRO MENOCAL; MARCOS BRAMBILA;
LOURDES ARGUETA; HUGO HERNANDEZ;
GRISEL XAHUENTITLA; JESUS GAYTAN; OLGA
ALEXAKLINA; DAGOBERTO VIZGUERRA;
DEMETRIO VALERGA, ON THEIR OWN BEHALF
AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED,
Plaintiffs-Appellees,
v.
THE GEO GROUP, INC.,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before HOLMES, Chief Judge, McHUGH, and CARSON,
Circuit Judges.
* This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
2a
Appendix A
Plaintiff-Appellee Alejandro Menocal commenced
a class action lawsuit against Defendant-Appellant
The GEO Group, Inc. (“GEO”), alleging forced labor
in violation of the Trafficking Victims Protection Act
(“TVPA”), 18 U.S.C. § 1589, and unjust enrichment in
violation of Colorado common law.
GEO filed a motion for summary judgment, claiming
that it was entitled to derivative sovereign immunity
pursuant to the Supreme Court’s decision in Yearsley v.
W.A. Ross Construction Co., 309 U.S. 18, 60 S. Ct. 413, 84
L. Ed. 554 (1940). GEO argued that the Yearsley doctrine1
1. The parties joust about the proper characterization of
the Yearsley doctrine. Specifically, they raise the question of
whether it should be properly viewed as defining an “immunity”
or a “defense.” By characterizing it as an “immunity,” GEO seeks
to align the Yearsley doctrine with “numerous forms of immunity
that qualify for the collateral order doctrine.” Aplt.’s Br. in Opp’n
to Mot. to Dismiss (“Aplt.’s Opp’n Br.”) at 2. On the other hand, by
characterizing the doctrine as a “defense,” Plaintiffs-Appellees
endeavor to highlight that the Yearsley doctrine provides “defenses
to liability and not immunities from suit.” Aplees.’ Mot. to Dismiss
at 8-9. Although noting that Yearsley “remains the seminal case for
deriving immunity from a contractor’s relationship with a sovereign
entity,” commentators have highlighted that the case “never used
the term ‘immunity.’” Kate Sablosky Elengold & Jonathan D. Glater,
The Sovereign Shield, 73 STAN. L. REV. 969, 989 (2021). In our
view, it is neither necessary nor prudent in this case to wade into
this debate regarding how to label the Yearsley doctrine. Rather,
we focus our attention on the narrow question under Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93
L. Ed. 1528 (1949) of whether an appeal from an order denying a
contractor’s assertion of protection under Yearsley can be reviewed
completely separate from the merits. We answer that question in the
3a
Appendix A
functions as a shield from suit rather than as a defense
to liability. The district court disagreed and, in relevant
part, denied GEO’s motion.
GEO now appeals from the court’s order rejecting
its claim of immunity from suit under Yearsley. And Mr.
Menocal and other detainees in the class (collectively,
“Plaintiffs-Appellees”) have moved to dismiss the appeal,
arguing that we lack appellate jurisdiction because the
court’s order rejecting this purported immunity is not
immediately appealable.
We conclude that a district court’s order denying
application of the Yearsley doctrine is not subject to
interlocutory appeal. More specifically, we determine
that the question of Yearsley’s applicability cannot be
reviewed completely separate from the merits and,
accordingly, an interlocutory appeal cannot be taken from
a court order resolving that question under the Supreme
Court’s decision in Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949).
Accordingly, we grant Plaintiffs-Appellees’ motion to
dismiss the appeal for lack of appellate jurisdiction and
dismiss this appeal.
negative. Accordingly, we lack jurisdiction under Cohen over GEO’s
interlocutory appeal invoking Yearsley’s protection.
4a
Appendix A
I
A
GEO operates a private immigration detention facility
in Aurora, Colorado—the Aurora Immigration Processing
Center (“AIPC”)—pursuant to a contract with a federal
government agency, U.S. Immigration and Customs
Enforcement (“ICE”). Mr. Menocal was detained as an
AIPC detainee from June 2014 to September 2014.
Pursuant to GEO’s Housing Unit Sanitation Policy
(the “Sanitation Policy”), Mr. Menocal participated
in AIPC’s mandatory sanitation program during his
detention. The Sanitation Policy required “[a]ll detainees
. . . to keep clean and sanit[ize] all commonly accessible
areas of the housing unit, including walls, floors, windows,
window ledges, showers, sinks, toilets, tables, and chairs.”
Aplt.’s App., Vol. I, at 244 (AIPC Detainee Handbook Loc.
Suppl., revised Oct. 2013). GEO staff members assigned
these cleaning tasks—which also included cleaning the
recreation yard and picking up trash—to detainees on a
periodic basis.
AIPC placed the Sanitation Policy in the detainee
handbook that it distributed to each detainee and posted
notices related to the handbook on bulletin boards. AIPC
communicated to detainees that refusal to perform
their assigned cleaning tasks would result in a range of
disciplinary actions. Upon a detainee’s initial refusal, “the
television [would] be turned off, and the detainee [would]
not be permitted to participate in any activities/programs
5a
Appendix A
until the housing unit [was] cleaned.” Aplt.’s App., Vol. I,
at 244; see, e.g., Aplees.’ Suppl. App., Vol. II, at 46 (Dep. of
Hugo Hernandez, dated June 24, 2020) (“If the detainee
doesn’t start cleaning or . . . [if] they refuse to clean, the
TVs and the phones don’t go on.”).
For continued refusal, a detainee would face a range of
possible sanctions, including disciplinary transfer, solitary
confinement for up to seventy-two hours, suspension of
privileges, reprimand, and warning. In particular, Mr.
Menocal and other former detainees stated that AIPC
officials threatened them with solitary confinement. See,
e.g., Aplees.’ Suppl. App., Vol. II, at 22-23 (Dep. of Mr.
Menocal, dated July 22, 2020) (“I actually witnessed a
group of people that did not follow the procedure, the rules,
and they were taken away, and they were put in isolation.
And they came back, I believe, a week later . . . .”); id. at
85 (Dep. of Dagoberto Vizguerra, dated Feb. 21, 2018)
(recounting that an officer would “scream” at detainees
“about going to segregation” for “not cleaning”); id. at 13844 (Dep. of Alejandro Torres, dated July 16, 2020) (stating
that he was sent to solitary confinement “four times” at
AIPC for refusing to perform his assigned cleaning tasks).
In addition to the mandatory sanitation program,
AIPC maintained a Voluntary Work Program. Under that
program, Mr. Menocal and other detainees voluntarily
performed various jobs, including preparing food,
operating the library, barbering, and doing the laundry.
Detainees were “[o]rdinarily . . . not . . . permitted to
work in excess of eight hours daily or 40 hours weekly”
and, as compensation, GEO paid the detainees $1.00 per
6a
Appendix A
day. See Aplees.’ Suppl. App., Vol. I, at 57 (Nat’l Detainee
Handbook, ICE Det. Mgmt. Div., filed June 1, 2016);
see, e.g., Aplees.’ Suppl. App., Vol. II, at 14 (Dep. of Mr.
Menocal, dated July 22, 2020) (“Q. And when you signed
up, did you understand that you would get paid a dollar a
day? A. Yes, sir. . . .”).
B
On October 22, 2014, Mr. Menocal initiated a class
action lawsuit against GEO, asserting (1) a claim of forced
labor stemming from the Sanitation Policy, in violation
of the TVPA, 18 U.S.C. § 1589; and (2) a claim of unjust
enrichment stemming from the Voluntary Work Program,
in violation of Colorado common law. 2 In its answer, GEO
asserted a number of affirmative defenses and, as most
relevant here, claimed derivative sovereign immunity as
a government contractor.
On February 27, 2017, the district court granted Mr.
Menocal’s motion to certify a class for each claim. See
Menocal v. GEO Grp., Inc., 320 F.R.D. 258, 270-71 (D.
Colo. 2017), aff’d, 882 F.3d 905 (10th Cir. 2018). For the
claim brought under the TVPA, the class included all
persons detained at AIPC between October 2004 and
October 2014. For the claim brought under Colorado’s
2. Mr. Menocal also claimed that GEO failed to pay detainees
the minimum wage, in violation of the Colorado Minimum Wages of
Workers Act, Colo. Rev. Stat. §§ 8-6-101-8-6-120. The district court,
however, found that the detainees were not covered under the statute
and dismissed that claim. See Menocal v. GEO Grp., Inc., 113 F.
Supp. 3d 1125, 1129 (D. Colo. 2015). That decision is not at issue here.
7a
Appendix A
unjust enrichment law, the class included all detainees
who participated in the Voluntary Work Program between
October 2011 and October 2014. GEO appealed, arguing
that the district court abused its discretion by certifying
classes that would require individualized determinations.
On interlocutory appeal, we rejected GEO’s arguments
and affirmed the district court’s certification of both
classes. See Menocal v. GEO Grp., Inc., 882 F.3d 905, 927
(10th Cir. 2018).
After the close of discovery, Plaintiffs-Appellees
moved for summary judgment on GEO’s assertion of
derivative sovereign immunity. They argued that GEO
was not required to maintain either the Sanitation Policy
or the Voluntary Work Program under its contracts with
ICE. GEO cross-moved for summary judgment. GEO
argued that “ICE explicitly authorized and directed the
activities of which the Forced Labor class complains”—
viz., requiring detainees to perform cleaning tasks
pursuant to the Sanitation Policy. Aplt.’s App., Vol. II, at
309 (Def.’s Cross-Mot. for Summ. J., filed June 25, 2020).
Similarly, GEO argued that “ICE explicitly authorized
and directed the activities of which the Voluntary Work
Program Class complains” and authorized GEO’s practice
of paying detainees $1.00 per day. Id. at 314.
On October 18, 2022, the district court granted
Plaintiffs-Appellees’ motion and denied GEO’s cross
motion, finding that “ICE neither directed nor required
GEO to improperly compel detainees’ labor or to
compensate [Voluntary Work Program] participants only
$1.00 per day.” Menocal v. GEO Grp., Inc., 635 F. Supp.
8a
Appendix A
3d 1151, 1173 (D. Colo. 2022). The district court ultimately
concluded that GEO was not entitled to protection from
suit under Yearsley.
In reaching that conclusion, the district court analyzed
GEO’s assertion of derivative sovereign immunity under
the two-prong test set forth in Yearsley. 3 First, the
district court queried whether the authority exercised
by ICE in contracting with GEO was validly conferred
by Congress. Second, the district court assessed whether
GEO’s challenged actions were required by its contractual
obligations to ICE.
As to the TVPA claim, the district court answered
the first question in the affirmative, determining that
8 U.S.C. §§ 1103, 1226, and 1231 conferred upon the
Attorney General the authority to detain noncitizens
and that the Attorney General could in turn confer
that authority on private contractors. But as to the
second question, the district court concluded that the
Sanitation Policy exceeded the detention standards that
ICE promulgated. Specifically, the district court found
3. The district court also analyzed GEO’s claim of immunity
that raised the government-contractor defense that the Supreme
Court established in United States v. Boyle, 469 U.S. 241, 105 S.
Ct. 687, 83 L. Ed. 2d 622 (1985). Id. at 1177-79. But on appeal, GEO
asserts that the government-contractor defense “has no relevance
outside the small band of cases involving tort claims against federal
contractors and the [Federal Tort Claims Act, 28 U.S.C. §§ 26712680],” and that “[t]his is not one of those cases.” Aplt.’s Opening
Br. at 23. Because neither GEO’s appeal nor Plaintiffs-Appellees’
motion to dismiss depend on the government-contractor defense,
we decline to discuss it further.
9a
Appendix A
that ICE merely provided “disciplinary segregation [a]s
a potential sanction” in the event a detainee refused to
clean their assigned living area and “did not mandate
that detainees clean the common areas or clean up after
others.” Id. at 1174 (emphasis added). Further, the district
court found that the “audit forms used by ICE [were] not
specific enough to show that [ICE] directed or required
GEO’s cleaning policies and their implementation,” despite
GEO’s arguments to the contrary. Id.
As to the unjust enrichment claim, the district court
declined to address the first question—viz., whether ICE’s
authority was validly conferred—having determined
that GEO failed to show that ICE required GEO to pay
detainees $1.00 per workday. Id. at 1175. The district court
found that ICE set a payment floor, not ceiling, and—aside
from that floor—did not require that detainees be paid
any specific amount.
On November 16, 2022, GEO filed a timely notice of
appeal from the district court’s summary judgment order,
challenging the court’s conclusion as to GEO’s assertion
of immunity. Plaintiffs-Appellees filed a timely motion to
dismiss for lack of appellate jurisdiction. That motion,
the associated briefing, and the merits briefing is before
us now.
II
Because “this court must always satisfy itself of
jurisdiction before addressing the merits of a claim,” we
begin with the jurisdictional issue. Cudjoe v. Indep. Sch.
10a
Appendix A
Dist. No. 12, 297 F.3d 1058, 1063 (10th Cir. 2002); see
also In re Franklin Sav. Corp., 385 F.3d 1279, 1286 (10th
Cir. 2004) (“Jurisdictional issues must be addressed first
and, if they are resolved against jurisdiction, the case is
at an end.”). “[A] federal court always has jurisdiction to
determine its own jurisdiction . . . .” Shepherd v. Holder,
678 F.3d 1171, 1180 (10th Cir. 2012) (quoting United States
v. Ruiz, 536 U.S. 622, 628, 122 S. Ct. 2450, 153 L. Ed.
2d 586 (2002)). “[I]t is beyond peradventure,” however,
that the party invoking our appellate jurisdiction bears
the “burden to make such a jurisdictional showing.”
Cummings v. Dean, 913 F.3d 1227, 1235 (10th Cir. 2019);
see, e.g., Raley v. Hyundai Motor Co., 642 F.3d 1271, 1275
(10th Cir. 2011) (“Where an appellant fails to lead, we have
no duty to follow. It is the appellant’s burden, not ours, to
conjure up possible theories to invoke our legal authority
to hear her appeal.”).
We conclude that we lack appellate jurisdiction over
GEO’s interlocutory appeal of the district court’s order
denying GEO’s claim of protection from suit under
Yearsley because appellate review of an order denying
such protection cannot be undertaken completely separate
from the merits; consequently, an order denying Yearsley’s
applicability does not satisfy the collateral order doctrine
of Cohen. We first outline the general contours of our
appellate jurisdiction and briefly offer an overview of the
collateral order doctrine. Next, we discuss, as relevant
here, the import of the Supreme Court’s decision in
Yearsley—as subsequently clarified in Campbell-Ewald
Co. v. Gomez, 577 U.S. 153, 136 S. Ct. 663, 193 L. Ed. 2d
571 (2016). Finally, we explain why an order denying the
11a
Appendix A
applicability of the Yearsley doctrine cannot be reviewed
completely separate from the merits and, consequently,
why such orders do not qualify for interlocutory appeal
under Cohen.
A
Our jurisdiction is limited to “appeals from all final
decisions of the district courts of the United States.”
28 U.S.C. § 1291. “A ‘final decisio[n]’ is typically one ‘by
which a district court disassociates itself from a case.’”
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106, 130
S. Ct. 599, 175 L. Ed. 2d 458 (2009) (alteration in original)
(quoting Swint v. Chambers Cnty. Comm’n, 514 U.S. 35,
42, 115 S. Ct. 1203, 131 L. Ed. 2d 60 (1995)); see Ritzen
Grp., Inc. v. Jackson Masonry, LLC, 589 U.S. 35, 37, 140
S. Ct. 582, 205 L. Ed. 2d 419 (2020) (“In civil litigation
generally, a court’s decision ordinarily becomes ‘final,’
for purposes of appeal, only upon completion of the entire
case, i.e. , when the decision ‘terminate[s the] action’ . . . .”
(alteration in original) (quoting Gelboim v. Bank of Am.
Corp., 574 U.S. 405, 409, 135 S. Ct. 897, 190 L. Ed. 2d
789 (2015))); In re Syngenta AG MIR 162 Corn Litig., 61
F.4th 1126, 1171 (10th Cir. 2023) (“[W]hen a district court
has no more to do but ‘execute the judgment,’ we know
that the decision it has entered is final for the purposes
of conferring jurisdiction under § 1291.” (quoting Van
Cauwenberghe v. Biard, 486 U.S. 517, 521-22, 108 S. Ct.
1945, 100 L. Ed. 2d 517 (1988))). “This finality requirement
‘precludes consideration of decisions that are subject to
revision, and even of fully consummated decisions [that]
are but steps towards final judgment in which they will
12a
Appendix A
merge.’” Roska ex rel. Roska v. Sneddon, 437 F.3d 964,
969-70 (10th Cir. 2006) (alteration in original) (quoting
Behrens v. Pelletier, 516 U.S. 299, 305, 116 S. Ct. 834, 133
L. Ed. 2d 773 (1996)). To that end, “[t]he denial of summary
judgment is ordinarily not appealable.” Castillo v. Day,
790 F.3d 1013, 1017 (10th Cir. 2015).
The Supreme Court has long given this finality
requirement a “practical rather than a technical
construction.” Cohen, 337 U.S. at 546; see Cobbledick v.
United States, 309 U.S. 323, 324-25, 60 S. Ct. 540, 84 L.
Ed. 783 (1940) (“Finality as a condition of review is an
historic characteristic of federal appellate procedure.
It was written into the first Judiciary Act and has been
departed from only when observance of it would practically
defeat the right to any review at all.” (footnotes omitted)).
A non-final order “practical[ly]” qualifies as a final decision
if it “[1] conclusively determine[s] the disputed question, [2]
resolve[s] an important issue completely separate from the
merits of the action, and [3] [is] effectively unreviewable
on appeal from a final judgment.” Will v. Hallock, 546 U.S.
345, 349, 126 S. Ct. 952, 163 L. Ed. 2d 836 (2006) (quoting
P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 144, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993)).
Importantly, in order to qualify as an appealable
collateral order under Cohen, all three of these criteria
must be satisfied. See United States v. Schneider, 594
F.3d 1219, 1230 (10th Cir. 2010) (“[W]e need only find the
absence of one of these elements to eliminate jurisdiction
. . . .”); In re Magic Circle Energy Corp., 889 F.2d 950,
954 (10th Cir. 1989) (“Because a party seeking to appeal
13a
Appendix A
on this basis must show that all three requirements of
the doctrine are satisfied, we need not address each if
any one is not met.”). “One other important point that
we keep in mind when considering whether to apply the
collateral order doctrine is that our focus is not on whether
an immediate appeal should be available in a particular
case, but instead we focus on whether an immediate appeal
should be available for the category of orders at issue . . . .”
Tucker v. Faith Bible Chapel Int’l, 36 F.4th 1021, 1035
(10th Cir. 2022) (emphasis omitted), cert. denied, 143 S.
Ct. 2608, 216 L. Ed. 2d 1208 (2023); see also Johnson v.
Jones, 515 U.S. 304, 315, 115 S. Ct. 2151, 132 L. Ed. 2d 238
(1995) (“We of course decide appealability for categories
of orders rather than individual orders. Thus, we do not
now in each individual case engage in ad hoc balancing to
decide issues of appealability.” (citations omitted)).
The Supreme Court has time and again stressed
the narrow confines of the collateral order doctrine. See
Mohawk, 558 U.S. at 113 (“[T]he class of collaterally
appealable orders must remain ‘narrow and selective in
its membership.’” (emphasis added) (quoting Will, 546 U.S.
at 350)); Will, 546 U.S. at 350 (“[W]e have not mentioned
applying the collateral order doctrine recently without
emphasizing its modest scope.” (emphasis added)); Swint,
514 U.S. at 42 (noting that the doctrine encompasses “a
small category of decisions that, although they do not
end the litigation, must nonetheless be considered ‘final’”
(emphasis added) (quoting Cohen, 337 U.S. at 546)); Digit.
Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114
S. Ct. 1992, 128 L. Ed. 2d 842 (1994) (“[T]he conditions for
collateral order appeal [are] stringent.” (emphasis added)).
14a
Appendix A
These consistently “cautionary directions” for marking the
boundaries of the doctrine “[n]o doubt” reflect “the plain
language of § 1291 . . . and [account] for the congressional
policy which the statute seeks to advance—namely that it
is the district judge, not the appellate judge, who in our
system of justice has ‘primary responsibility to police
the prejudgment tactics of the litigants, and . . . the
district judge can better exercise that responsibility if the
appellate courts do not repeatedly intervene to secondguess prejudgment rulings.’” United States v. Wampler,
624 F.3d 1330, 1334-35 (10th Cir. 2010) (second omission
in original) (quoting Richardson-Merrell, Inc. v. Koller,
472 U.S. 424, 436, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985)).
Indeed, “[t]he types of orders that fall under the
collateral order doctrine ‘require only two hands to
count.’” Mohamed v. Jones, 100 F.4th 1214, 1218 (10th Cir.
2024) (emphasis added) (quoting Belya v. Kapral, 45 F.4th
621, 629 n.5 (2d Cir. 2022), cert. denied sub nom. Synod
of Bishops of the Russian Orthodox Church Outside of
Russ. v. Belya, --- U.S. ----, 143 S. Ct. 2609, 216 L. Ed. 2d
1208 (2023)). On the one hand, there are orders denying
“‘constitutionally based immunities,’ [such as] qualified,
absolute, tribal, [and] Eleventh Amendment . . . immunity.”
Id. at 1218 & n.4 (quoting Los Lobos Renewable Power,
LLC v. Americulture, Inc., 885 F.3d 659, 664 (10th Cir.
2018) (collecting cases)). And on the other hand, there are
“orders that would be moot following final judgment,”
such as orders denying class certification, intervention
as of right, or motions for a speedy trial. Id. at 1219 & n.5
(collecting cases).
15a
Appendix A
B
In Yearsley v. W.A. Ross Construction Co., 309 U.S. 18,
60 S. Ct. 413, 84 L. Ed. 554 (1940), Nebraska landowners
sought damages from a government contractor; the
contractor built dikes in the Missouri River that produced
erosion, washing away a part of their land. The parties
agreed that the federal government authorized and
directed the company’s work to improve the navigability
of the Missouri River. The parties further agreed that
the government authorized and directed the company’s
work pursuant to federal law. The Supreme Court stated:
[I]f this authority to carry out the project was
validly conferred, that is, if what was done was
within the constitutional power of Congress,
there is no liability on the part of the contractor
for executing its will. Where an agent or officer
of the Government purporting to act on its
behalf has been held to be liable for his conduct
causing injury to another, the ground of liability
has been found to be either that he exceeded his
authority or that it was not validly conferred.
Id. at 20-21 (citations omitted). In other words, in
Yearsley, the Supreme Court essentially created a twoprong framework. The first prong focuses on whether
the government legally conferred its authority to the
contractor. The second prong focuses on the government’s
specific instructions to a contractor. Applying this twoprong framework, the Supreme Court concluded that the
company was not liable. Specifically, the Court stated
16a
Appendix A
the following: “[I]t cannot be doubted that the remedy to
obtain compensation from the Government . . . excludes
liability of the Government’s representatives lawfully
acting on its behalf . . . .” Id. at 22.
The Supreme Court has since clarified the scope of the
Yearsley doctrine. In Campbell-Ewald Co. v. Gomez, 577
U.S. 153, 136 S. Ct. 663, 193 L. Ed. 2d 571 (2016), the Court
considered whether the federal government’s sovereign
immunity shielded a marketing company that the U.S.
Navy contracted with to develop a recruiting campaign. A
class of young adults claimed that the marketing company
sent automated recruiting text messages to them without
their consent, in violation of the Telephone Consumer
Protection Act, 47 U.S.C. § 227(b)(1)(A)(iii).
The marketing company asserted “derivative
sovereign immunity,” arguing that “private persons
performing Government work acquire the Government’s
embracive immunity.” Campbell-Ewald, 577 U.S. at 166.
The Supreme Court acknowledged that “[g]overnment
contractors obtain certain immunity in connection
with work which they do pursuant to their contractual
undertakings with the United States.” Id. (quoting Brady
v. Roosevelt S.S. Co., 317 U.S. 575, 583, 63 S. Ct. 425, 87
L. Ed. 471 (1943)). But the Supreme Court noted that such
“immunity, . . . unlike the sovereign’s, is not absolute.” Id.
Addressing only the second prong of the Yearsley
doctrine, the Court determined that the marketing
company acted contrary to the Navy’s explicit instructions.
Specifically, the Supreme Court explained that “[a] Navy
17a
Appendix A
representative noted the importance of ensuring that . . .
all recipients had consented to receiving messages . . .
and made clear that the Navy relied on [the marketing
company’s] representation that the [opt-in] list was in
compliance.” Id. at 168. The Supreme Court concluded
that the marketing company therefore could not claim the
government’s embracive immunity.
C
As we have suggested, we lack jurisdiction unless
GEO can establish all three conditions of Cohen’s collateral
order doctrine. See EEOC v. PJ Utah, LLC, 822 F.3d 536,
542 n.7 (10th Cir. 2016) (“[T]he appellant . . . bears the
burden to establish appellate jurisdiction.”); Boughton
v. Cotter Corp., 10 F.3d 746, 749 (10th Cir. 1993) (“Unless
all three requirements are established, jurisdiction is not
available under the collateral order doctrine.”). Stated
differently, GEO’s failure to establish any one of the
conditions is sufficient to defeat our appellate jurisdiction.
See Schneider, 594 F.3d at 1230. And recall that, for
this analysis, we “do not engage in . . . ‘individualized
jurisdictional inquir[ies]’”; rather, GEO’s burden extends
to “the entire category to which a claim belongs.” Mohawk,
558 U.S. at 107 (first quoting Coopers & Lybrand v.
Livesay, 437 U.S. 463, 473, 98 S. Ct. 2454, 57 L. Ed. 2d
351 (1978); then quoting Digit. Equip., 511 U.S. at 868).
We conclude that GEO cannot establish that we have
jurisdiction over this interlocutory appeal because GEO
cannot show that it satisfies the second Cohen condition:
that is, GEO cannot show that the question presented
18a
Appendix A
by its appeal—which stems from an order denying the
applicability of the Yearsley doctrine—can be reviewed
completely separate from the merits.4 Therefore, without
reaching the other two Cohen conditions, 5 we determine
that Plaintiffs-Appellees’ motion to dismiss is well-taken
and should be granted.
1
As noted, the second Cohen condition concerns
whether the appeal would “resolve an important issue
completely separate from the merits of the action.” Will,
4. Plaintiffs-Appellees highlight that the Ninth Circuit reached
the same outcome in Childs v. San Diego Family Housing LLC, 22
F.4th 1092 (9th Cir. 2022). See Aplees.’ Mot. to Dismiss at 7. True
enough. And the analysis in Childs is instructive in some respects.
However, it offers limited direct guidance here because, in Childs—
for unstated reasons—the parties did “not dispute” that the second
Cohen condition was “satisfied,” and therefore the Childs panel had
no need to reach the issue we resolve. Childs, 22 F.4th at 1096.
5. The parties do not appear to dispute that the first Cohen
condition is satisfied: that is, they appear to agree that the district
court’s order conclusively determined the question in dispute here.
Compare Aplt.’s Opp’n Br. at 7 (stating that “Plaintiffs do not contest
the first Cohen factor”), with Aplees.’ Mot. to Dismiss at 8 (explaining
why the second and third Cohen conditions are not satisfied, without
commenting on the first). Stated otherwise, neither party disputes
that the district court’s order is “the final word” on whether GEO
may claim derivative immunity under the Yearsley doctrine. State of
Utah By & Through Utah State Dep’t of Health v. Kennecott Corp., 14
F.3d 1489, 1492 (10th Cir. 1994). However, we have no need to address
the first Cohen condition to resolve this appeal, and, therefore, we
do not do so.
19a
Appendix A
546 U.S. at 349; see also Cohen, 337 U.S. at 546. The second
condition “is ‘a distillation of the principle that there
should not be piecemeal review of “steps towards final
judgment in which they will merge.”’” Van Cauwenberghe,
486 U.S. at 527 (quoting Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 12, n.13, 103 S. Ct. 927,
74 L. Ed. 2d 765 (1983)); see also Cohen, 337 U.S. at 546
(“The purpose is to combine in one review all stages of the
proceeding that effectively may be reviewed and corrected
if and when final judgment results.” (emphasis added)).
More specifically, this condition is animated by the
notion that “[a]llowing appeals from interlocutory orders
that involve considerations enmeshed in the merits of
the dispute would waste judicial resources by requiring
repetitive appellate review of substantive questions in the
case.” Van Cauwenberghe, 486 U.S. at 527-28. “An issue is
completely separate from the merits if it is ‘significantly
different from the fact-related legal issues that likely
underlie the plaintiff’s claim on the merits.’” Los Lobos
Renewable Power, 885 F.3d at 665 (quoting Johnson, 515
U.S. at 314); accord Coomer v. Make Your Life Epic LLC,
98 F.4th 1320, 1324-25 (10th Cir. 2024).
The question of whether the district court properly
denied the protection of the Yearsley doctrine to
a government contractor turns on (1) whether the
government validly conferred the authority upon the
government contractor; and (2) whether the government
directed the complained-of action. See Yearsley, 309 U.S.
at 20.
20a
Appendix A
2
We can efficiently resolve the jurisdictional question
before us by turning directly to the second inquiry. In our
view, there is overlap between the second Yearsley prong—
viz., whether the government directed the contractor’s
challenged actions—and the merits of a plaintiff’s claims
challenging the lawfulness of those actions. This prong
wades into the specific directions that the government
gave to the contractor and whether, by failing to closely
adhere to those instructions, the government contractor
engaged in illegal conduct. See Campbell-Ewald, 577 U.S.
at 166 (“When a contractor violates both federal law and
the Government’s explicit instructions, as here alleged,
no ‘derivative immunity’ shields the contractor from suit
by persons adversely affected by the violation.” (emphasis
added)); cf. Cunningham v. Gen. Dynamics Info. Tech.,
Inc., 888 F.3d 640, 647 (4th Cir. 2018) (“Quite plainly,
GDIT [i.e., the government contractor] performed exactly
as CMS [i.e., the government agency] directed: GDIT
called the number CMS instructed GDIT to call, on the
prescribed day, and followed CMS’s provided script when
leaving the message.”).
More specifically, the assessment of the applicability
of the second Yearsley prong would “presumably overlap”
with determinations on the merits regarding the lawfulness
of the contractor’s challenged actions. Kell v. Benzon, 925
F.3d 448, 458 (10th Cir. 2019); see Aplees.’ Mot. to Dismiss,
Ex. A at 14 (Br. for the United States as Amicus Curiae,
Morales v. Cultural Care, Inc., No. 21-1676 (1st. Cir.
Nov. 23, 2022)) (“[T]he question whether a defendant can
21a
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establish a Yearsley defense is often coterminous with the
merits of the action. That is because the defense applies . . .
only where the defendant acted lawfully . . . .”); id., Ex. B.
at 8-9 (Br. for the United States as Amicus Curiae, CACI
Premier Tech., Inc. v. Al Shimari, et al., No. 19-648 (U.S.
Aug. 2020) (“[B]ecause the ‘derivative sovereign immunity’
defense [i.e., the Yearsley doctrine] requires that the
government contractor have complied with all relevant
federal requirements, decisions addressing the defense
at preliminary stages of a case often also will not satisfy
the separateness and conclusiveness requirements of the
collateral-order doctrine.” (emphasis added)). In other
words, factual questions concerning what the government
did and did not specifically direct would be at the heart
of the Yearsley inquiry on the second prong and also at
the heart of the merits inquiry into the lawfulness of a
contractor’s challenged actions. We thus cannot say that
orders denying the applicability of the Yearsley doctrine
would implicate questions “significantly different from”
the merits of a plaintiff’s claims. Los Lobos Renewable
Power, 885 F.3d at 665.
Although the Supreme Court has eschewed conducting
the Cohen analysis on a case-by-case basis, the present
facts highlight the soundness of our conclusion—viz., that
an appeal from an order denying purported immunity
under Yearsley cannot be reviewed completely separate
from the merits. See, e.g., Kell, 925 F.3d at 455-59;
Coomer, 98 F.4th at 1327 (noting that the present “case
illustrate[d] the fact-driven nature of the analysis”); see
also La Union Del Pueblo Entero v. Abbott, 68 F.4th 228,
233 n.13 (5th Cir. 2023) (“Despite Mohawk’s directive
22a
Appendix A
toward categorical rules, determining whether a question
is ‘separate from the merits’ will typically require caseby-case analysis.”); Aplees.’ Mot. to Dismiss, Ex. B. at 14
(highlighting the case at hand to show a failure of Cohen’s
separateness requirement and noting the following:
“CACI’s [i.e., the government contractor’s] assertion of
the [Yearsley] defense here illustrates the point. CACI
could not demonstrate entitlement to the defense without
proving that it acted within the scope of a lawful delegation
from the government. But respondents’ [i.e., plaintiff’s]
claims themselves rest on the premise that CACI”
disregarded federal law and the government’s express
instructions. (citation omitted)).
GEO’s asser tion that Yearsley immunizes its
challenged conduct implicates questions about what ICE
directed GEO to do and whether GEO exceeded those
directions. Specifically, any assessment of the propriety of
GEO’s reliance on Yearsley to insulate it from the TVPA
claim regarding the Sanitation Policy would necessarily
require us to determine what the contractual arrangement
between ICE and GEO specifically directed GEO to do
in imposing sanitation responsibilities on detainees and
whether GEO adhered to the letter of those directions.
Intertwined with that inquiry would be matters at the
heart of Plaintiffs-Appellees’ TVPA claim—viz., whether
GEO “knowingly provide[d] or obtain[ed] the labor” of the
class “by means of,” inter alia, (1) “threats of physical
restraint to that person or another person”; (2) “serious
harm or threats of serious harm to that person or another
person”; (3) “the abuse or threatened abuse of law or legal
process”; or (4) “any scheme, plan, or pattern intended
23a
Appendix A
to cause the person to believe that, if that person did not
perform such labor or services, that person or another
person would suffer . . . physical restraint.” 18 U.S.C.
§ 1589(a).
A similar intertw ining w ith the merits would
plague the inquiry into the propriety of GEO’s claimed
immunity under Yearsley from Plaintiffs-Appellees’
unjust enrichment claim. Our evaluation of the nature
of the government’s specific directions pertaining to
the Voluntary Work Program—and GEO’s adherence
to them—would be at play in our determinations as to
each of the elements of an unjust enrichment claim—i.e.,
whether “(1) [GEO] received a benefit (2) at [PlaintiffsAppellees’] expense (3) under circumstances that would
make it unjust for [GEO] to retain the benefit without
commensurate compensation.” Pulte Home Corp., Inc. v.
Countryside Cmty. Ass’n, Inc., 2016 CO 64, 382 P.3d 821,
833 (Colo. 2016) (quoting Lewis v. Lewis, 189 P.3d 1134,
1141 (Colo. 2008)).
GEO attempts to avoid this case-specific result,
arguing that whether it is entitled to Yearsley’s protection
“depends on the terms of that contract, not whether the
challenged policies offend the TVPA or unjustly enrich
GEO.” Aplt.’s Opp’n Br.at 11. But Campbell-Ewald
directly undercuts GEO’s argument because it stresses
that the Yearsley inquiry involves a factual assessment of
whether the contractor exceeded or otherwise deviated
from the government’s explicit instructions—in a contract
or otherwise. See, e.g., Taylor Enery Co., L.L.C. v.
Luttrell, 3 F.4th 172, 175-76 (5th Cir. 2021) (“For actions
24a
Appendix A
to be authorized and directed by the Government, the
contractor’s actions should comply with federal directives”
(citing Campbell-Ewald, 577 U.S. at 167 n.7)).
The Court in Campbell-Ewald plainly indicated that
a contractor “could be held liable for conduct causing
injury to another”—and thus no derivative immunity
exists—when the contractor “ha[s] ‘exceeded [its]
authority.’” 577 U.S. at 167 (quoting Yearsley, 309 U.S. at
20-21); accord Zakka v. Palladium Int’l, LLC, 298 A.3d
319, 328 (D.C. 2023) (“[A] contractor claiming Yearsley
immunity from liability for a tortious act must establish
that the government specifically authorized and directed
it to perform the tortious act itself. Mere governmental
acceptance or approval of a tortious act will not suffice to
vest a government contractor with derivative sovereign
immunity if the government did not actually direct the
contractor to commit the tort. Nor does it suffice for a
contractor to show only that the tortious act was within
the scope of the activity that the government authorized
and directed it to do.”); cf. Gay v. A.O. Smith Corp., No.
23-2078, 2024 U.S. App. LEXIS 12536, 2024 WL 2558735,
at *2 (3d Cir. May 24, 2024) (unpublished) (affirming the
grant of summary judgment in part because the plaintiff
failed to “present[] . . . evidence that [the government
contractor] deviated from the [government’s] instructions
or exceeded its contractual authority”). And whether GEO
exceeded the government’s specific directions cannot
be assessed “completely separate from the merits” of
Plaintiffs-Appellees’ claims. Will, 546 U.S. at 349.
The parties’ merits briefing in this appeal further
demonstrates that we could not determine whether GEO
25a
Appendix A
exceeded its authority for Yearsley purposes without
engaging with the substance of the TVPA and unjust
enrichment claims. As to the TVPA claim, questions
concerning whether the contract prohibited GEO from
punishing detainees with solitary confinement loom large.
Compare Aplt.’s Opening Br. at 37 (“GEO’s housekeeping
and disciplinary policies reflect the requirements and
oversight of the federal government for ICE detainees.”),
with Aplees.’ Resp. Br. at 38-39 (“[T]he contract requires
GEO to comply with Federal Acquisition Regulation
§ 52.222-50, which bars contractors from ‘obtaining the
labor or services of a person . . . by threats of serious harm
to, or physical restraint against, that person or another
person.’” (omission in original) (citations omitted)).
And, as to the unjust enrichment claim, questions of
whether the contract required GEO to pay detainees $1.00
a day, or simply set that amount as a minimum wage, are
not only relevant to the proper adjudication of that claim
on the merits but also to the applicability of the Yearsley
doctrine. Compare Aplt.’s Opening Br. at 27 (“Through the
AIPC contracts, the government explicitly directed GEO
to provide [Voluntary Work Program] participants at the
AIPC a stipend of ‘$1 per day,’ and later, ‘at least $1 per
day.’ . . . By establishing a [Voluntary Work Program] and
paying $1 per day, GEO complied with the government’s
directions.”), with Aplees.’ Resp. Br. at 49 (“GEO’s
contract required it to comply with state law. Thus, GEO
was not only permitted but mandated to pay more than
$1 a day.” (citation omitted)).
Put simply, these are the sort of merits-related
questions that Cohen prohibits on interlocutory review.
26a
Appendix A
They are the type of “inquir[ies] [that] would differ
only marginally from . . . inquir[ies] into the merits
and counsel[] against application of the collateral order
doctrine.” Cunningham v. Hamilton Cnty., 527 U.S. 198,
206, 119 S. Ct. 1915, 144 L. Ed. 2d 184 (1999). As in this
case, so would it be in all appeals challenging orders that
reject contractors’ assertions of Yearsley’s protection
from claims challenging their conduct purportedly under
government contracts. That is because both the inquiries
regarding Yearsley protection and the merits of those
claims would relate to whether the government specifically
directed the contractors’ actions and whether, in practice,
they deviated from the government’s directions.
The significant role that the actual facts—as pleaded
at the 12(b)(6) phase or established by the evidence at the
summary-judgment phase—play in the Yearsley analysis
not only helps to explain why review of a district court’s
order rejecting the applicability of the Yearsley doctrine
cannot be reviewed completely separate from the merits,
but also, importantly, helps to explain why review of
that issue is distinguishable from review of denials of
qualified immunity—which are routinely considered on an
interlocutory basis. Though it vigorously presses the point,
GEO is misguided in asserting that the Yearsley doctrine
is “most akin to qualified immunity.” Aplt.’s Opp’n Br. at 9.
On appeal from denial of qualified immunity, the
court is concerned with resolving “abstract issues of
law.” Johnson, 515 U.S. at 317; see Mitchell v. Forsyth,
472 U.S. 511, 528 n.9, 105 S. Ct. 2806, 86 L. Ed. 2d 411
(1985) (“We emphasize at this point that the appealable
27a
Appendix A
issue is a purely legal one: whether the facts alleged
[]by the plaintiff . . . support a claim of violation of
clearly established law.”); Fogarty v. Gallegos, 523 F.3d
1147, 1153 (10th Cir. 2008) (“Although orders denying
summary judgment are ordinarily not appealable, we
have interlocutory jurisdiction over denials of qualified
immunity at the summary judgment stage to the extent
that they ‘turn[ ] on an issue of law.’” (alteration in original)
(quoting Mitchell, 472 U.S. at 530)). That is, such issues of
law are the court’s focus; the court is not concerned with
determining what actually happened.
In this regard, ordinarily, the court simply accepts,
for purposes of its legal analysis, “the plaintiff’s version
of the facts.” See York v. City of Las Cruces, 523 F.3d
1205, 1209 (10th Cir. 2008) (“Our jurisdiction also extends
to situations where a defendant claims on appeal that
accepting the plaintiff’s version of the facts as true, he is
still entitled to qualified immunity.”); accord Buck v. City
of Albuquerque, 549 F.3d 1269, 1276 (10th Cir. 2008). That
version may or may not accurately depict what happened;
yet the plaintiff may survive summary judgment on the
qualified immunity issue under that version; then, it is
up to the jury at trial to assess what actually happened.
See Mitchell, 471 U.S. at 527 (“[T]he trial judge may rule
only that if the facts are as asserted by the plaintiff,
the defendant is not immune. At trial, the plaintiff may
not succeed in proving his version of the facts, and the
defendant may thus escape liability.”); id. at 528 (“An
appellate court reviewing the denial of the defendant’s
claim of [qualified] immunity need not consider the
correctness of the plaintiff’s version of the facts, nor even
28a
Appendix A
determine whether the plaintiff’s allegations actually state
a claim. All it need determine is a question of law: whether
the legal norms allegedly violated by the defendant were
clearly established at the time of the challenged actions
. . . .”); see also Thomson v. Salt Lake Cnty., 584 F.3d
1304, 1326 (10th Cir. 2009) (Holmes, J., concurring) (“It
is only after plaintiff crosses the legal hurdle comprised
of his or her two-part [qualified immunity] burden of
demonstrating the violation of a constitutional right that
was clearly established, that courts should be concerned
with the true factual landscape—as opposed to the factual
landscape as plaintiff would have it.”); Medina v. Cram,
252 F.3d 1124, 1130 (10th Cir. 2001) (“Courts of appeals
clearly lack jurisdiction to review summary judgment
orders deciding qualified immunity questions solely on
the basis of evidence sufficiency—‘which facts a party
may, or may not, be able to prove at trial.’ Consequently,
an order will not be immediately appealable unless it
‘present[s] more abstract issues of law.’” (alteration in
original) (quoting Johnson, 515 U.S. at 317)).
Indeed, if the defendant fails or refuses to accept the
plaintiff’s version of the facts as true for purposes of the
court’s legal analysis on interlocutory appeal, the court
lacks jurisdiction to adjudicate the dispute. Compare Cox
v. Glanz, 800 F.3d 1231, 1243-44 (10th Cir. 2015) (“Ms. Cox
nevertheless suggests that the court’s fact-based manner
of disposing of the defense divests us of jurisdiction to
reach the qualified-immunity issue on appeal. We disagree.
Notably, Sheriff Glanz has accepted the truth of Ms. Cox’s
version of the facts for purposes of this appeal. Under our
controlling caselaw . . . that ordinarily will permit us to
29a
Appendix A
address the legal issues presented by the agreed-upon set
of facts, and there is nothing about this case that would
counsel against following that path.”), with Henderson v.
Glanz, 813 F.3d 938, 950 (10th Cir. 2015) (“This argument
does not accept as true Ms. Henderson’s version of the
facts or view the facts in the light most favorable to Ms.
Henderson. Because it instead challenges the district
court’s factual determinations about the sheriff’s risk
awareness and does not fall within one of the exceptions to
the rule that we may only consider purely legal questions
on appeal from a denial of qualified immunity, we lack
jurisdiction over Sheriff Glanz’s appeal.”).
In contrast to the methodology employed in the
context of qualified immunity interlocutory appeals, in
the Yearsley inquiry, the court is concerned with the
actual factual circumstances—e.g., what the government
specifically directed the contractor to do and whether the
contractor deviated from the government’s directions. See
Cunningham, 888 F.3d at 647. And the court’s need to
delve into the actual underlying factual circumstances in
conducting that inquiry invariably means that its review
of orders denying Yearsley protection for the contractor’s
actions cannot be reviewed separate from the merits of a
case challenging the lawfulness of the contractor’s actions.
In sum, the review of denials of Yearsley’s protection
cannot be confined to abstract issues of law—as is true
with denials of qualified immunity—and, accordingly, GEO
is misguided in believing that such denials of qualified
immunity are closely analogous to the Yearsley situation
and support its argument for interlocutory review.
30a
Appendix A
Thus, we conclude that GEO cannot establish that we
have jurisdiction over this interlocutory appeal because
GEO cannot show that it satisfies the second Cohen
condition. Specifically, GEO cannot demonstrate that
the review of denials of protection under Yearsley can be
undertaken completely separate from the merits.
***
In sum, GEO fails to establish Cohen’s second
condition—viz., that this appeal would “resolve an
important issue completely separate from the merits of
the action.” Will, 546 U.S. at 349. Because GEO’s failure
as to this condition is fatal to our jurisdiction, we need
not address the second and third conditions of Cohen. The
upshot is that orders denying relief under the Yearsley
doctrine do not present a circumstance where it is proper
to expand the narrow confines of the collateral order
doctrine.
III
For the foregoing reasons, we lack appellate
jurisdiction over this appeal under the collateral order
doctrine. We thus GRANT Plaintiffs-Appellees’ motion
and DISMISS this appeal.6
6. Plaintiffs-Appellees filed a motion to provisionally seal
Volume III of Appellee’s Supplemental Appendix, which contains
(1) contracts between ICE and GEO, (2) GEO’s detainee work plans,
and (3) the 2013 ICE National Detainee Handbook. The Clerk of
Court provisionally granted that motion on April 6, 2023, subject
to final determination by the merits-panel. As to the first two
31a
Appendix A
Entered for the Court
Jerome A. Holmes
Chief Judge
sets of documents, the parties “articulate a real and substantial
interest that justifies depriving the public of access to the records
that inform our decision-making process.” Eugene S. v. Horizon
Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135-36 (10th Cir.
2011). As to the third document, the parties appear to agree that it
should be unsealed. Accordingly, the motion is granted in part as
to (1) the contracts between ICE and GEO and (2) GEO’s detainee
work plans. The motion is denied as to (3) the 2013 ICE National
Detainee Handbook. The designated portions of the appendix shall
thus remain sealed in part.
32a
B THE UNITED
APPENDIX B —Appendix
ORDER OF
STATES DISTRICT COURT FOR THE DISTRICT
OF COLORADO, FILED OCTOBER 18, 2022
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02887-JLK-MEH
ALEJANDRO MENOCAL, MARCOS BRAMBILA,
GRISEL XAHUENTITLA, HUGO HERNANDEZ,
LOURDES ARGUETA, JESUS GAYTAN, OLGA
ALEXAKLINA, DAGOBERTO VIZGUERRA, AND
DEMETRIO VALEGRA, ON THEIR OWN BEHALF
AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
Plaintiffs,
v.
THE GEO GROUP, INC.,
Defendant.
October 18, 2022, Decided
October 18, 2022, Filed
ORDER ON THE PARTIES’ CROSS MOTIONS FOR
SUMMARY JUDGMENT (ECF NOS. 260, 284, & 305)
AND DEFENDANT’S MOTIONS TO DISMISS (ECF
NO. 307) AND FOR DECERTIFICATION OF
CLASS (ECF NO. 312)
33a
Appendix B
Kane, J.
Plaintiffs in this case are former immigration
detainees at the Aurora Detention Facility in Aurora,
Colorado, a private immigration detention center owned
by Defendant The GEO Group, Inc. (“GEO”) and operated
pursuant to a contract with U.S. Immigration and
Customs Enforcement (“ICE”). The parties have filed a
handful of motions related to the sufficiency and type of
the evidence supporting Plaintiffs’ claims, GEO’s status as
a government contractor, and ICE’s role in the challenged
conduct. After wading through the parties’ exhaustive
arguments, I determine GEO’s motions are without merit
and find neither derivative sovereign immunity nor the
government contractor defense protect it from liability.
I. Background
Plaintiffs originally brought three claims against
GEO for: (1) noncompliance with the Colorado Minimum
Wages of Workers Act, Colo. Rev. Stat. § 8-6-101, et seq.; (2)
violations of the forced labor provision of the Trafficking
Victims Protection Act (“TVPA”), 18 U.S.C. §§ 1589, 1595;
and (3) unjust enrichment. GEO filed a motion to dismiss,
and I granted its motion as to the Colorado minimum wage
claim. Menocal v. GEO Grp., Inc., 113 F.Supp.3d 1125,
1135 (D. Colo. 2015) (“Menocal I”). Plaintiffs remaining
claims challenge two separate policies implemented by
GEO at the Aurora Detention Facility (the “Facility”).
First, Plaintiffs assert that, by forcing detainees at the
Facility to clean up the common areas and after other
detainees under the threat of segregation, GEO has
violated the TVPA. Second, Plaintiffs claim that GEO has
34a
Appendix B
been unjustly enriched by paying detainees only $1.00 per
day for their participation in the Facility’s Voluntary Work
Program (the “VWP”).
Plaintiffs sought to proceed with their TVPA and
unjust enrichment claims on behalf of two classes of
similarly situated individuals. I granted Plaintiffs’ request,
finding both proposed classes fulfilled the requirements
set out in Federal Rule of Civil Procedure 23. Menocal
v. GEO Grp., Inc., 320 F.R.D. 258, 270 (D. Colo. 2017)
(“Menocal II”). For Plaintiffs’ claim brought under the
TVPA, the certified class includes: all persons detained
in the Facility in the ten years preceding the filing of this
action, i.e., from October 22, 2004, to October 22, 2014.
Id. at 262. For Plaintiffs’ unjust enrichment claim, the
certified class includes: all people who performed work
at the Facility under GEO’s VWP in the three years
preceding the filing of this action, i.e., from October 22,
2011, to October 22, 2014. Id. Convinced certification of
the two classes was in error, GEO filed an interlocutory
appeal of the Certification Order, which the Tenth Circuit
affirmed, Menocal v. GEO Grp., Inc., 882 F.3d 905, 927
(10th Cir. 2018) (“Menocal III”).
A. Specific Motions at Issue
This Order addresses four motions filed by GEO and
a single motion filed by Plaintiffs:
• The parties’ cross motions for summary judgment on
GEO’s assertion of derivative sovereign immunity and
its government contractor defense (ECF Nos. 260 &
284);
35a
Appendix B
• GEO’s Motion to Dismiss (ECF No. 307) based on
Plaintiffs’ purported failure to join ICE, which GEO
contends is a necessary and indispensable party;
• GEO’s Motion for Summary Judgment (ECF No. 305),
in which it argues that judgment as a matter of law
on Plaintiffs’ TVPA and unjust enrichment claims is
appropriate because Plaintiffs cannot establish the
requisite elements of their claims; and
• GEO’s Motion for Decertification of Class (ECF No.
312), asserting that the TVPA class should be decertified
because the evidence in the record demonstrates that
class members’ individual circumstances predominate.
B. GEO’s Operation of the Aurora Detention Facility
1.
The Relevant Contracts
During the period covering the certified classes,
the Facility was operated by GEO pursuant to a series
of three contracts with ICE: the first in effect from
March 27, 2003 (the “2003 Contract”), the second from
September 29, 2006 (the “2006 Contract”), and the third
from September 15, 2011 (the “2011 Contract”). See 2003
Contract, ECF No. 262-5; 2006 Contract, ECF No. 262-4;
2011 Contract, ECF No. 262-2.1 ICE is an agency within
1. The docket in this case became so cluttered with declarations
and exhibits that I directed the parties to follow a specific procedure
for future filings. See Order re: Mots. to Restrict at 2, ECF No.
320. Still, some of the parties’ later filings reflected old habits and
continued to make review of the submitted evidence an unnecessarily
tedious task. See, e.g., ECF Nos. 326, 351, 353.
36a
Appendix B
the Department of Homeland Security that is primarily
tasked with enforcing the nation’s immigration laws.
One aspect of ICE’s responsibility is arranging for the
detention of individuals who are awaiting the results of
their immigration proceedings or removal. ICE frequently
contracts with private entities to house these individuals
in privately owned facilities, like the Aurora Detention
Facility.
The relevant ICE-GEO contracts provide that GEO
is to receive payment for a certain number of beds,
regardless of actual occupancy, and an additional rate for
each bed that is occupied above that minimum number.
2003 Contract, ECF No. 262-5 at 6; 2006 Contract, ECF
No. 262-4 at 3-4; 2011 Contract, ECF No. 262-2 at 3-4.
GEO’s profits are the difference between what it spends
and the payments it receives from ICE under their
contracts. Krumpelmann Dep. 23:23-24:4, ECF No. 261-6.
GEO produced Dan Ragsdale, Executive Vice
President for Contract Compliance, as its corporate
designee under Federal Rule of Civil Procedure 30(b)(6) to
testify about its contracts with ICE as they relate to GEO’s
policies at issue in this case. Mr. Ragsdale explained that
detention facilities develop policies and ICE “review[s]
and clear[s]” those policies. Ragsdale Dep. 39:3-6, ECF
No. 271-11. ICE does so through its on-site Contracting
Officer’s Technical Representative (“COTR”). 2 Nelson
2. Apparently, this title was used interchangeably with
“Contracting Officer’s Representative” for the individual who held
the position for the Facility during the relevant contract periods.
GEO Second Notice of Suppl. Auth. at 2, ECF No. 297. The letter
37a
Appendix B
Dep. 150:18-151:2, ECF No. 261-16. The ICE-GEO
contracts specify that, “[t]o be valid, technical direction
by the COTR [m]ust be consistent with the general scope
of work set forth . . . in th[e] contract” and it “[m]ay not
. . . change the expressed terms, conditions or specifications
of th[e] contract.” 2011 Contract, ECF No. 288-1 at 41.
ICE also has annual reviews of the Facility conducted to
determine whether it meets specific standards imposed
by the contracts. See Annual Review Mems., ECF No.
273-6. Over the periods covered by the certified classes,
ICE rated the Facility as acceptable or as meeting the
assessed standards. See id.
The ICE-GEO contracts reference and incorporate
many external policies and standards. As relevant here,
Federal Acquisition Regulation 52.222-50, relating to
the U.S. Government’s “policy prohibiting trafficking in
persons,” is incorporated into the 2006 and 2011 Contracts.
2006 Contract, ECF No. 262-4 at 21; 2011 Contract, ECF
No. 262-2 at 51. The Regulation states: “Contractors,
contractor employees, and their agents shall not . . . [u]se
forced labor in the performance of the contract.” 48 C.F.R.
§ 52.222-50(b). Additionally, the contracts reference the
American Correctional Association (“ACA”) standards.
2003 Contract, ECF No. 262-5 at 12; 2006 Contract, ECF
No. 262-4 at 11; 2011 Contract, ECF No. 262-2 at 38. ACA
Standard 4-ALDF-5C-08 provides that: “Pretrial and
appointing that Contracting Officer’s Representative states that
the Representative shall not “[c]hange or modify any of the terms
and conditions . . . of a contract” and shall not “direct the contractor
. . . to operate in conflict with the contract terms and conditions.”
COR Appointment Letter at 3-4, ECF No. 297-2.
38a
Appendix B
unsentenced inmates are not required to work except
to do personal housekeeping and to clean their housing
area.” ACA Performance-Based Standards, ECF No.
261-15 at 10.
Most significantly, the contracts require compliance
with the ICE Performance Based National Detention
Standards (“PBNDS”)3 and clarify that ICE policies and
standards prevail if ever other standards conflict with
them. 2003 Contract, ECF No. 262-5 at 12, 15, 17; 2006
Contract, ECF No. 262-4 at 11; 2011 Contract, ECF No.
262-2 at 38-39. Three versions of the PBNDS are relevant
in this case: those promulgated in 2000, 2008, and 2011.
The parties dispute when GEO was required to
comply with the 2011 PBNDS, which were published
on February 27, 2012, ICE Report on 2011 PBNDS,
ECF No. 287-8 at 8. The 2011 ICE-GEO Contract cites
to the 2008 PBNDS, stating “[a] copy of the current
version is obtainable on the Internet website: http://
www.ice.gov/detention-standards/2008/.” 2011 Contract,
ECF No. 262-2 at 38. But the Contract explains that
the listed “constraints may change over time” and “the
Contractor shall be knowledgeable of any changes to the
constraints and perform in accordance with the most
current version of the constraints.” 2011 Contract, ECF
262-2 at 37. After the 2011 PBNDS were published, GEO
and ICE executed a contract modification, specifically
incorporating into their contract the 2011 PBNDS, among
3. Before 2008, these were known as just the National Detention
Standards. See 2003 Contract, ECF No. 262-5 at 15. For simplicity,
I refer to them all as the PBNDS.
39a
Appendix B
other policies. 2013 Contract Modification, ECF No. 262-3
at 2. The modification provides that “[w]ithin 30 days of
[its] execution . . . the facility shall be compliant with all
PBNDS 2011 Standards stated herein.” 2013 Contract
Modification, ECF No. 262-3 at 3.4
2.
The Voluntary Work Program
Under the ICE-GEO contracts and the PBNDS, GEO
is required to administer a Voluntary Work Program for
detainees. See 2000 PBNDS, ECF No. 261-10 at 2-3; 2008
PBNDS, ECF No. 261-9 at 60; 2011 PBNDS, ECF No.
261-8 at 50. The 2011 Contract, which covers the period
of the unjust enrichment class, provides a stipend for
the Program, under which GEO is to be reimbursed at
“actual cost” of $1.00 per day of detainee labor provided
under the Program and is not to seek reimbursement
for more than the specified total amount. 2011 Contract,
ECF No. 262-2 at 5. For at least the first part of the 2011
Contract’s term, the 2008 PBNDS applied and directed
that, for detainees who perform work in accordance with
a facility’s standard policy, “the compensation is $1.00 per
day.” 2008 PBNDS, ECF 261-9 at 63. As mentioned, the
4. GEO contends it was not required to comply with the 2011
PBNDS until the 2011 contract was modified in 2013. Plaintiffs
say immediate compliance was required based on the language in
the Contract requiring the Contractor to “perform in accordance
with the most current version of the constraints.” 2011 Contract,
ECF 262-2 at 37. Plaintiffs also point to an email sent April 4, 2012,
mentioning the new language regarding reimbursement for VWP
work. Amber Martin Dep. 44:10-46:6, ECF No. 287-9. My rulings
below obviate the need to resolve this dispute.
40a
Appendix B
parties dispute when GEO was required to comply with
the 2011 PBNDS under its contract. At some point, though,
the 2011 PBNDS required that detainees who participated
in the VWP receive compensation of “at least $1.00 (USD)
per day.” 2011 PBNDS, ECF No. 261-8 at 53.
The PBNDS lists a handful of “expected outcomes”
or “objectives” of the VWP. See 2000 PBNDS, ECF No.
261-10 at 3; 2008 PBNDS, ECF No. 261-9 at 60; 2011
PBNDS, ECF No. 261-8 at 50. The applicable versions
of the PBNDS describe the following as ICE’s expected
outcomes of the VWP, among others: (1) “[d]etainees
may have opportunities to work and earn money while
confined”; (2) “[e]ssential operations and services will be
enhanced through productivity from detainees”; (3) “[t]he
negative impact of confinement will be reduced through
less idleness, improved morale and fewer disciplinary
incidents”; and (4) “[d]etainee working conditions will
comply with all applicable federal, state, and local work
safety laws and regulations.” 2008 PBNDS, ECF No.
261-9 at 60; see also 2011 PBNDS, ECF No. 261-8 at 50.
Over the relevant period, GEO paid participants in
the VWP at the Facility $1.00 per day. Participants in
the VWP signed a document that indicated they would be
compensated this amount. See Detainee VWP Agreement,
ECF No. 306-2 at 3. Dawn Ceja, the Assistant Warden
at the Facility and GEO’s corporate designee, stated
that this document was not an employment contract and
did not create any rights for the detainee who signed it.
Ceja Dep. 149:25-150:11, ECF No. 336-9. In addition to
the $1.00-per-day compensation, some VWP participants
41a
Appendix B
received extra rewards, like candy or ice cream. Id. 162:14163:25, ECF No. 306-3.
GEO has paid detainees more than $1.00 per day
at some of its other facilities, but the record does not
establish that those other facilities are subject to identical
contract terms. At the LaSalle Processing Center—an
ICE detention facility operated by GEO where the same
PBNDS provisions have applied—GEO has paid as much
as $4.00 per day to VWP participants, even though GEO
is only reimbursed $1.00 per day by ICE. Amber Martin
Dep. 109:1-110:6, ECF No. 261-2. When asked how GEO
could pay detainees more than $1.00 per day under the
VWP, Amber Martin, GEO’s Executive Vice President of
Contract Administration, stated: “I guess we could do it
on our own dime.” Id. 107:22, ECF No. 261-2.
Mr. Ragsdale testified that there was no financial
incentive for GEO to use detainees through the VWP to
do anything because their work is cost neutral at a dollar
a day but becomes a cost to GEO when detainees have
to be incentivized beyond that. Ragsdale Dep. 168:12-17,
ECF No. 306-14. He explained that GEO would make
more money if it could charge ICE an additional margin
for employees on its staffing plan. Id. 168:4-10, ECF No.
306-14. But there is other testimony in the record that,
even if there is no competition, GEO might not be awarded
a contract if its price was set too high. Venturella Dep.
165:25-166:4, ECF No. 336-17.
42a
Appendix B
3.
Policies Relevant to Plaintiffs’ TVPA Claim
Several policies written and/or implemented by GEO
are relevant to Plaintiffs’ TVPA claim. First, the PBNDS
incorporated into the controlling ICE-GEO contracts
listed circumstances in which detainees were expected to
clean and provided a disciplinary framework. The PBNDS
explained:
[A]ll detainees are responsible for personal
housekeeping. . . . [D]etainees are required to
maintain their immediate living areas in a neat
and orderly manner by:
1. making their bunk beds daily;
2. stacking loose papers;
3. keeping the floor free of debris and dividers
free of clutter; and
4. refraining from hanging/draping clothing,
pictures, keepsakes, or other objects from
beds, overhead lighting fixtures or other
furniture.
2000 PBNDS, ECF No. 261-10 at 3; 2008 PBNDS, ECF
No. 261-9 at 61-62; 2011 PBNDS, ECF No. 261-8 at 51.5 The
5. Although the three PBNDS versions contain slightly different
wording, the language quoted throughout this Order is materially
the same in each of the PBNDS, unless it is otherwise noted.
43a
Appendix B
Declaration of Jay Brooks, an ICE supervisory detention
and deportation officer, asserts that the tasks set out
above were “not intended by ICE to be an exhaustive list
of facility scenarios in which a detainee may be expected
to participate in housekeeping.” Brooks Decl. ¶ 14, ECF
No. 335-2. 6 ICE did not, however, specify any other
housekeeping tasks detainees were expected to perform.
The ICE National Detainee Handbook, which is
provided to detainees at the Facility, includes the following
question and response: “Will I get paid for keeping my
living area clean? No. You must keep areas that you use
clean, including your living area and any general use areas
that you use. If you do not keep your areas clean, you may
be disciplined.” 2013 ICE Handbook, ECF No. 310-1 at 18.
6. Ms. Brooks’ Declaration was submitted in response to an
information request in another case—Novoa v. GEO Grp., Inc.,
No. 17-cv-2514 (C.D. Cal.). GEO filed Ms. Brooks’ Declaration with
its October 26, 2020 Notice of Supplemental Authority (ECF No.
335). Plaintiffs object to Ms. Brooks’ interpretation of this section
of the PBNDS because she only participated in drafting the 2011
PBNDS and the language she describes was present in the prior
versions as well. Resp. to Notice of Supp. Auth. at 5, ECF No. 345.
Plaintiffs request that, to the extent I find Ms. Brooks’ Declaration
probative, I grant them “leave to depose Ms. Brooks, at GEO’s
expense, to eliminate any prejudice caused by GEO’s disclosure
of her declaration after the close of discovery.” Id. at 9 n.4. While
Ms. Brooks’ Declaration provides useful background information, I
agree with Plaintiffs that it does not conclusively provide support for
any of GEO’s Motions, and thus I deny without prejudice Plaintiffs’
request to depose Ms. Brooks.
44a
Appendix B
Additionally, GEO was obligated to adopt ICE’s
disciplinary severity scale found in the PBNDS and to
provide notice of that scale to detainees through the local
detainee handbook. 2000 PBNDS, ECF No. 261-10 at 9-10,
17; 2008 PBNDS, ECF No. 261-9 at 44-45; 2011 PBNDS,
ECF No. 261-8 at 38-39. Under the PBNDS disciplinary
scale, “[r]efusal to clean assigned living area” and “[r]
efusing to obey a staff member/officer’s order” were
both considered “high moderate” offenses subject to the
following sanctions:
A. Initiate criminal proceedings
B. Disciplinary transfer (recommend)
C. Disciplinary segregation (up to 72 hours)
D. Make monetary restitution, if funds are available
E. Loss of privileges (e.g. commissary, vending
machines, movies, recreation, etc.)
F. Change housing
G. Remove from program and/or group activity
H. Loss of job
I.
Impound and store detainee’s personal property
J.
Confiscate contraband
45a
Appendix B
K. Restrict to housing unit
L. Reprimand
M. Warning
2000 PBNDS, ECF No. 261-10 at 24; 2008 PBNDS,
ECF No. 261-9 at 56-57; 2011 PBNDS, ECF No. 261-8
at 47-48. Disciplinary segregation involves segregating
detainees from the general population for punitive reasons
and may only be imposed after a disciplinary hearing
panel has found a detainee is guilty of a prohibited act
or violation for which disciplinary segregation is an
authorized punishment. 2000 PBNDS, ECF No. 261-10
at 70; 2008 PBNDS, ECF No. 261-9 at 28; 2011 PBNDS,
ECF No. 261-8 at 27. Disciplinary segregation differs
from administrative segregation, which may be used for
protective custody or when a detainee is an immediate
safety threat. See, e.g., 2011 PBNDS, ECF No. 261-8 at 22.
The PBNDS disciplinary scale also included the offenses
of “[f]ailure to follow safety or sanitation regulations”
and “[b]eing unsanitary or untidy, failing to keep self and
living area in accordance with posted standards,” which
were classified as “low moderate” offenses for which
segregation was not a potential sanction. 2000 PBNDS,
ECF No. 261-10 at 27-28; 2008 PBNDS, ECF No. 261-9
at 58-59; 2011 PBNDS, ECF No. 261-8 at 49.
Pursuant to the PBNDS, Officers who witnessed a
prohibited act were to complete an incident report. 2000
PBNDS, ECF No. 261-10 at 11; 2008 PBNDS, ECF No.
261-9 at 45; 2011 PBNDS, ECF No. 261-8 at 39. Minor
46a
Appendix B
transgressions were to be settled informally whenever
possible, unless the involved officer believed informal
resolution was inappropriate or unachievable. 2000
PBNDS, ECF No. 261-10 at 11; 2008 PBNDS, ECF No.
261-9 at 46; 2011 PBNDS, ECF No. 261-8 at 39. After an
incident report was investigated, the Unit Disciplinary
Committee (“UDC”) conducted hearings and, for low
moderate and high moderate offenses, again attempted
to accomplish an informal resolution. 2000 PBNDS, ECF
No. 261-10 at 12; 2008 PBNDS, ECF No. 261-9 at 47;
2011 PBNDS, ECF No. 261-8 at 40-41. The UDC could
not impose disciplinary segregation. 2000 PBNDS, ECF
No. 261-10 at 13; 2008 PBNDS, ECF No. 261-9 at 47; 2011
PBNDS, ECF No. 261-8 at 41. If a matter was not resolved
by the UDC or involved serious charges, it was forwarded
to the Institutional Disciplinary Panel (“IDP”), which held
a more formal hearing. 2000 PBNDS, ECF No. 261-10
at 12, 15-16; 2008 PBNDS, ECF No. 261-9 at 47-51; 2011
PBNDS, ECF No. 261-8 at 41-43. Only the IDP could place
a detainee in disciplinary segregation. 2000 PBNDS, ECF
No. 261-10 at 15; 2008 PBNDS, ECF No. 261-9 at 50; 2011
PBNDS, ECF No. 261-8 at 43.
ICE’s annual reviews of the Facility assessed the
PBNDS requirements listed on the review forms. See
Annual Review Mems., ECF No. 273-6. The forms
included whether the facility had a “written disciplinary
system using progressive levels of reviews and appeals,”
id., ECF No. 273-6 at 6, 14, 28, 40, 58, 75, but they did not
cover “the requirement that [detainees] clean the common
areas,” Ragsdale Dep. 38:7-8, ECF No. 287-12.
47a
Appendix B
The Facility’s Detainee Handbook (the “Handbook”)
provides the foundation for Plaintiffs’ TVPA claim. The
Handbook communicated the rules and policies of the
Facility, including ICE’s disciplinary severity scale as well
as GEO’s own cleaning requirements, and it was issued
to all detainees at the Facility. Ceja Dep. 29:21-23, ECF
No. 336-9; see 2005 Handbook, ECF No. 273-1 at 24; 2007
Handbook, ECF No. 273-2 at 64; 2008 Handbook, ECF No.
273-3 at 25-26; 2010 Handbook, ECF No. 273-4 at 21-22;
2011 Handbook, ECF No. 273-5 at 22; Oct. 2013 Handbook,
ECF 261-17 at 26. GEO expected that detainees would
review the Handbook for the rules and regulations they
were required to follow. Ceja Dep. 100:8-11, ECF No. 3393. The Handbook put detainees “on notice” that if they did
not clean as directed, they could be taken to segregation.
Ceja Dep. 79:19-25, 80:20-25, ECF No. 339-2.
Specifically, the Handbook required detainees “to
keep [their] personal living area clean and sanitary,” which
included their “bunk and immediate floor area around and
under [their] bunk, locker, and any personal items.” 2005
Handbook, ECF No. 273-1 at 18; 2007 Handbook, ECF No.
273-2 at 48; 2008 Handbook, ECF No. 273-3 at 19; 2010
Handbook, ECF No. 273-4 at 16; 2011 Handbook, ECF
No. 273-5 at 17; Oct. 2013 Handbook, ECF 261-17 at 19.7
The Handbook’s cleaning requirements did not stop there,
though. The Handbook also stated: “[a]ll detainees in a
housing unit are required to keep clean and sanitary all
7. As with the PBNDS, the wording in the Facility’s Detainee
Handbooks differs slightly, but the language quoted throughout
this Order is materially the same in each Handbook, unless it is
otherwise noted.
48a
Appendix B
commonly accessible areas of the housing unit, including
walls, floors, windows, window ledges, showers, sinks,
toilets, tables, and chairs.” 2005 Handbook, ECF No.
273-1 at 18; 2007 Handbook, ECF No. 273-2 at 50; 2008
Handbook, ECF No. 273-3 at 19; 2010 Handbook, ECF
No. 273-4 at 17; 2011 Handbook, ECF No. 273-5 at 17; Oct.
2013 Handbook, ECF 261-17 at 20. The Handbook went
on to explain:
The day room area will be kept clean at all
times. Should an officer notice that the area
is not clean, the officer will make available
necessary cleaning supplies. If the detainees
in the housing unit do not clean the area after
being instructed to do so, the televisions will
be turned off, and the detainees will not be
permitted to participate in any activities/
programs until the housing unit is cleaned.
Continued refusal to clean the area will result
in further disciplinary action.
2005 Handbook, ECF No. 273-1 at 18; 2007 Handbook,
ECF No. 273-2 at 50; 2008 Handbook, ECF No. 273-3 at
19; 2010 Handbook, ECF No. 273-4 at 17; 2011 Handbook,
ECF No. 273-5 at 17; Oct. 2013 Handbook, ECF 261-17
at 20.
Then, under the heading “Housing Unit Sanitation,”8
the Handbook instructed:
8. The title in the 2007 and 2008 Handbooks is “Dormitory
Sanitation.”
49a
Appendix B
Each and every detainee must participate in the
facility’s sanitation program. A list of detainees
is developed each day by staff and is posted
daily for viewing. During a general cleanup
all detainees must participate. The assigned
Housing Unit Officer will be responsible for
assuring this general cleanup is done on a
regular basis.
2005 Handbook, ECF No. 273-1 at 18; 2007 Handbook,
ECF No. 273-2 at 49; 2008 Handbook, ECF No. 273-3 at
19; 2010 Handbook, ECF No. 273-4 at 17; 2011 Handbook,
ECF No. 273-5 at 17; Oct. 2013 Handbook, ECF 261-17 at
20. The Declaration of Shannon Ely, an ICE contracting
officer, states that the “Housing Unit Sanitation Policy
. . . is a GEO policy, created by GEO” and “is not created by
ICE nor is it a requirement of the contract.” Ely Decl. ¶¶ 2,
22, ECF No. 261-7.9 In contrast, Ms. Brooks’ Declaration
explains that, at other facilities, “ICE [wa]s not the initial
drafter of the GEO [Housing Unit Sanitation Policy],” but
“ICE may have had some input and may have reviewed
[the Housing Unit Sanitation Policy].” Brooks Decl. ¶ 10.
9. Plaintiffs are correct that Ms. Ely’s Declaration falls under
the hearsay exception in Federal Rule of Evidence 803(8)(A)(i), as
it sets out ICE’s activities. GEO argues that Ms. Ely’s Declaration
is untrustworthy because the COTR “signed off on the GEO
housekeeping policy” each year. GEO Notice of Suppl. Auth. at 2,
ECF No. 291; 4/13/17 ICE Email at 2, ECF No. 291-1; GEO Second
Notice of Suppl. Auth. at 2-3, ECF No. 297. The COTR’s review
does not establish that Ms. Ely’s Declaration is untrustworthy
since ICE could have known about the policy and still not created
it or required it as part of the ICE-GEO contracts. Likewise, Ms.
Brooks’ declaration is insufficiently definite to establish that Ms.
Ely’s Declaration is untrustworthy. See Brooks Decl. ¶ 10.
50a
Appendix B
Ms. Ceja described the “general cleanup,” in which
detainees were obligated to participate, as occurring
after meal service and involving “clean[ing] up the
tables, wip[ing] down the tables, and sweep[ing] and
mop[ping] the floors” in the day room area. Ceja Dep.
36:24-37:4, ECF No. 261-12. But, again, the Handbook
mandated that detainees “keep clean and sanitary all
commonly accessible areas of the housing unit, including
walls, floors, windows, window ledges, showers, sinks,
toilets, tables, and chairs.” 2005 Handbook, ECF No.
273-1 at 18; 2007 Handbook, ECF No. 273-2 at 50; 2008
Handbook, ECF No. 273-3 at 19; 2010 Handbook, ECF
No. 273-4 at 17; 2011 Handbook, ECF No. 273-5 at 17;
Oct. 2013 Handbook, ECF 261-17 at 20. In line with these
specifications, Plaintiff Hugo Hernandez testified that
detainees were expected to “clean the rec yard, wipe the
[]phones, clean the microwave, change the garbage bag,
clean the showers, disinfect the showers, pick up all the
trash, like the toothpaste, []the shampoo bottles.” Hugo
Hernandez Dep. 162:24-163:7, ECF No. 336-4; see also
Vizguerra Dep. 106:19-22 (reporting that he “[c]leaned the
whole pod and the restrooms”), ECF No. 339-6. Similarly,
Mr. Ragsdale confirmed that the detainees “share sort
of a common obligation to clean . . . where the microwave
is, where the . . . game boards are, video games, to keep
things in place in a reasonable cleanliness; the bathroom,
you know, . . . the communal areas.” Ragsdale Dep. 16:1418, ECF No. 336-19.10
10. GEO disputes that the tasks—beyond just wiping down
tables and cleaning the floors—were performed by unpaid detainees.
51a
Appendix B
In addition to providing copies of the Detainee
Handbook, GEO communicated many of its policies to
detainees by showing them a video or a slideshow upon
their arrival at the Facility. The video stated: “[w]hile
you are here, you are not required to work, except in the
dormitories where you will be assigned clean-up duties by
staff in rotation with other detainees.” Orientation Video
1 Tr., ECF No. 337-3 at 3; Orientation Video 2 Tr. ECF
No. 337-4 at 3. The video cautioned that failure to respect
the property of other detainees and that of the Facility
“may result in disciplinary action being taken against you
and that could have a negative effect on your case before
the government—so the best rule is to stay out of trouble
during your stay here.” Id.; Orientation Video 1 Tr., ECF
No. 337-3 at 3. Similarly, the slideshow advised: “Each and
every detainee must participate in the sanitation program.
A list of detainee’s [sic] is developed each day and is posted
for viewing. During a general clean-up all detainees must
participate.” Orientation Slideshow, ECF No. 340-4 at 35.
The slideshow also informed detainees that refusing to
obey a staff member was a high moderate offense, and “[t]
o avoid placement into disciplinary housing segregation,
[they should] read the local supplement detainee handbook
section regarding ‘Disciplinary Process.’” Id., ECF No.
340-4 at 62, 68.
Separate from the PBNDS and the Handbook but also
relevant is the Sanitation Section of the Facility’s Policy
and Procedure Manual. See 2004 Sanitation Policy, ECF
No. 262-8 at 2; 2004-05 Sanitation Policy, ECF No. 2628 at 14; 2005-06 Sanitation Policy, ECF No. 262-8 at 26;
2006-07 Sanitation Policy, ECF No. 262-8 at 37; 2007-08
52a
Appendix B
Sanitation Policy, ECF No. 262-8 at 41; 2008-09 Sanitation
Policy, ECF No. 262-8 at 52; 2009-10 Sanitation Policy,
ECF 262-8 at 60; 2010 Sanitation Policy, ECF No. 262-8 at
63; 2010-11 Sanitation Policy, ECF No. 262-8 at 66; 2011-12
Sanitation Policy, ECF No. 262-8 at 70; 2012-13 Sanitation
Policy, ECF No. 262-8 at 74; 2013-14 Sanitation Policy,
ECF No. 262-8 at 78. The Policy applied to detainees at the
Facility but was not provided to them. Ceja Dep. 29:13-18,
ECF No. 50-1. It was purportedly developed to identify
the materials to be used for cleaning. Kevin Martin Dep.
208:6-11, ECF No. 271-5. Nevertheless, it commanded:
“Each detainee will be responsible for the cleanliness
of his or her cell or living area, including walls, floors,
sink, toilet, windows, and other property within the cell,
room, or living area.” 2004 Sanitation Policy, ECF No.
262-8 at 3. And, pursuant to the Sanitation Section, daily
inspections were to take place, and staff were to issue an
incident report “in cases of continued noncompliance.” Id.,
ECF No. 262-8 at 4.
4.
The Imposition of Segregation for Detainees’
Failure to Clean
During the TVPA class period, detainees at the
Facility were threatened with being sent to segregation
when they refused to clean as directed. See, e.g.,
Xahuentitla Dep. 73:19-74:9; 83:14-19, ECF No. 287-10;
Hugo Hernandez Dep. 70:7-18; 73:21-74:21, ECF No. 28711. And some were placed in segregation for refusing to
clean. See Incident Reports at 3-10, 12-14, ECF No. 262-12;
Ceja Decl. ¶¶ 4-8, ECF 313-16.
53a
Appendix B
It was expected that the disciplinary scale and
associated rules set forth in the Facility’s Detainee
Handbook would be enforced. Ceja Dep. 139:2-12, ECF
No. 336-15. However, Amber Martin testified that it
has always been an informal policy for GEO not to use
segregation as a consequence for detainees’ refusal to
clean up their living area. Amber Martin Dep. 134:11135:8, ECF No. 271-6. The Declarations of GEO Officers
Sergio Gallegos, Luis Pagan, and Joyce Quezada support
this claim. Officer Declarations, ECF No. 306-12 at 3, 5,
8.11 According to Ms. Martin, GEO formalized the policy
a few years ago. Amber Martin Dep. 134:20-21, ECF No.
271-6.
In August 2014, there was an incident in which
multiple detainees refused to clean. Ms. Ceja reported that
she reviewed the files of the detainees involved and only
one was sent to segregation. Ceja Decl. ¶¶ 4-8, ECF 313-16.
Ms. Ceja also described how some detainees elected to be
placed in protective custody or administrative segregation
where they could receive “peace and quiet.” Ceja Dep.
55:7-19, ECF No. 306-3. As clarified above, administrative
segregation is distinct from disciplinary segregation, but
detainees subject to either are placed in the same housing
unit at the Facility. Ceja Dep.111:15-22, ECF No. 339-3.
11. Plaintiffs assert that these declarations should be excluded
under the sham affidavit rule. Pls.’ Resp. to Mot. for Summ. J., ECF
No. 336 at 56 n.7 (citing Lantec, Inc. v. Novell, Inc., 306 F.3d 1003,
1016 (10th Cir. 2002)). I consider the declarations and afford them
the appropriate weight given the context.
54a
Appendix B
A handful of GEO’s Officers provided deposition
testimony regarding their experiences. Officer Martha
Vasquez testified that, on the one occasion she encountered
a detainee who did not want to clean, she just skipped
to the next person. Vasquez Dep. 76:20-77:11, ECF No.
313-12. Officer Quezada testified that, in her 19 years of
working at the Facility, she never told a detainee they
would go to segregation if they did not clean. Quezada
Dep. 149:1-3, ECF No. 313-11. She claimed that instead
she would tell detainees who did not want to clean, “[d]on’t
worry about it, I can do it.” Id. 78:20-79:1, ECF No. 313-11.
There were not, however, any other rules in the Handbook
that she remembered being told not to enforce. Id. 96:2397:3, ECF No. 339-12. And Ms. Quezada acknowledged
that detainees were afraid of segregation and that it was
an effective way to get detainees to follow the Facility’s
rules. Id. 141:17-142:8, ECF No. 336-16.
Other officers also recognized that segregation could
be used to encourage compliance. Officer Pagan testified
that he may have explained to detainees that they were
required to clean and could be sent to segregation because
it was in the Facility’s Detainee Handbook. Pagan Dep.
174:19-175:6, ECF No. 336-11. Officer Gallegos testified
that, when someone did not want to clean, he would just
move on to the next detainee or even do it himself. Gallegos
Dep. 165:12-25, ECF No. 339-11. Yet, he accepted that he
wrote up a few detainees for “failure to obey [his] orders
for cleaning details” resulting in the detainees being
placed in segregation. Id. 170:13-205:25, ECF No. 336-5.
55a
Appendix B
5.
The Potential Effects of Segregation
To describe the potential effects of segregation,
Plaintiffs submitted the expert opinions of Dr. Stuart
Grassian, and GEO submitted those of Dr. Jeffrey Kropf.
See Grassian Report, ECF No. 336-21; Kropf Report, ECF
No. 339-20. According to Dr. Grassian’s Report, solitary
confinement “imposes a devastating triad of emotional and
neuropsychiatric deprivations: social isolation, a barren
perceptual environment, and deprivation of meaningful
mental activity.” Grassian Report, ECF No. 336-21 at
11. His Report explains that, even in the first days of
solitary confinement, suicide is much more common
than in the general population and people often develop
“severe panic attacks, marked by intense fear, dread of
impending death, and with somatic manifestations that
include tachycardia (racing pulse), diaphoresis (intense
sweating), shortness of breath, and tremulousness.” Id. at
11-12. Dr. Grassian specifically testified that the imposition
of 72 hours in segregation can cause psychological damage.
See, e.g., Grassian Dep. 216:2-5, ECF No. 336-3 (“[T]here
are individuals who become quite ill quite quickly, and
other individuals who can tolerate three days of solitary
confinement with less[] damage being done.”). In contrast,
Dr. Kropf’s report states: “There is no empirical evidence
indicating or even implying that placement in a segregated
housing unit with or without solitary confinement for a
period of 72 hours or less causes serious psychological
harm.” Kropf Report, ECF No. 339-20 at 4.
56a
Appendix B
C. Detainee Experiences at the Facility
During the period covered by the classes, detainees
at the Facility were housed in windowless cells or in large
open rooms with bunk beds. Facility Photos, ECF No.
337-2 at 6, 8. Detainees were generally strangers and had
no privacy, even when using the restroom. Gaytan Dep. at
29:1-2, ECF No. 336-10; Hugo Hernandez Dep. 143:5-17,
ECF No. 336-4. Unless detainees received authorization
for other items, detainees were only allowed to keep
legal documents, 5x7 or smaller family photos, a pair of
prescription glasses, dentures, a personal address book,
a wedding band, a small religious item, and softbound
reading material. 2005 Handbook, ECF No. 273-1 at 6;
2007 Handbook, ECF No. 273-2 at 14-15; 2008 Handbook,
ECF No. 273-3 at 5; 2010 Handbook, ECF No. 273-4 at 6;
2011 Handbook, ECF No. 273-5 at 6; Oct. 2013 Handbook,
ECF 261-17 at 8. Without approval for additional visitation
time, detainees were permitted one visit per day for 30
minutes or an hour. 2005 Handbook, ECF No. 273-1 at 11;
2007 Handbook, ECF No. 273-2 at 31; 2008 Handbook,
ECF No. 273-3 at 11; 2010 Handbook, ECF No. 273-4 at
10; 2011 Handbook, ECF No. 273-5 at 10-11; Oct. 2013
Handbook, ECF 261-17 at 12-13. Detainees were otherwise
permitted to use the phone for calls lasting less than 20
minutes. 2005 Handbook, ECF No. 273-1 at 12; 2007
Handbook, ECF No. 273-2 at 33; 2008 Handbook, ECF
No. 273-3 at 12; 2010 Handbook, ECF No. 273-4 at 11; 2011
Handbook, ECF No. 273-5 at 12; Oct. 2013 Handbook,
ECF 261-17 at 14.
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Appendix B
Plaintiff Alejandro Menocal described his typical day
at the Facility:
I wake up, get dressed, do my bed, wait for
breakfast, eat breakfast, clean up, maybe
exercise, walk around, read a book, draw. It
depends. Again, wait for lunch to eat, clean up,
maybe shower, maybe do some sports, maybe
talk on the phone with someone, maybe write
a letter, walk around, exercise, wait for dinner.
Same thing, eat dinner, relax a while, maybe
watch TV, read a book, draw, and, you know,
wait for bedtime.
Menocal Dep. 121:5-13, ECF No. 306-4. While detained,
Mr. Menocal summarized his experience in the Facility
to a friend, stating:
[T]hey’ve got pretty good grub, considering
it’s, you know, a detention center. And we got
three televisions, a bunch of tables, a bunch of
people, and we all get along. Pretty nice. I mean,
it’s—for being incarcerated, it’s not bad at all,
not compared to—not compared to Denver
County or the other one where I was at. This
is like Camp Snoopy. It’s pretty easy.
Id. 54:5-12, ECF No. 306-4. But Mr. Menocal explained
that he only told his friends and family that it was nice
there so that they would not worry about him. Id. 48:20-24,
67:12-23, ECF No. 336-2. In fact, he testified that “[t]he
food was very awful” and “[p]eople got sick in groups lots
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of times.” Id. 67:24-25, ECF No. 336-2. He remembered
that four or five of the maybe 20 officers he interacted with
at the Facility had bad attitudes, were rude, or were on a
power trip. Id. 64:11-65:2, ECF No. 313-3.
When he first arrived at the Facility, Mr. Menocal
was informed about the detainee schedule for how the day
area would be cleaned and was told by officers and other
detainees that if he did not clean as ordered he would be
put in isolation. Id. 95:16-97:3, ECF No. 336-2. Mr. Menocal
knew if he did not clean he would be punished and “would
go to the hole,” which “is not a pretty place.” Id. 104:25105:7, ECF No. 336-2. On one occasion, he witnessed
other detainees being taken away by officers and put in
isolation and was told it was because the detainees did not
do their daily cleanup. Id. 100:20-106:23, ECF No. 336-2.
However, Mr. Menocal “does not recall receiving direct
threats from any GEO employee regarding administrative
or disciplinary segregation for failing to clean.” Menocal
Responses to Second Disc. Requests, ECF No. 287-14 at 5.
Mr. Menocal generally cleans up after himself as a matter
of habit because he likes “to live and hang out in a clean
environment.” Menocal Dep. 81:6-10, ECF No. 306-4. He
testified that he spent between a half hour and an hour12
each day cleaning up his cell or sleeping area, specifically if
he was drawing or had made a mess. Id. 115:10-15, 116:2412. GEO misstates this testimony, asserting that Mr. Menocal
“spent between an hour and an hour and a half each day cleaning up
his cell.” Mot. for Decertification, ECF No. 312 at 17 (citing Menocal
Dep. 115:11-15). Likewise, GEO claims Mr. Menocal stated that “[o]
n occasion, he would make his cellmates[‘] beds,” id. (citing Menocal
Dep. 116:17-18), when the testimony is that he would occasionally
make a single cellmate’s bed, Menocal Dep. 116:14-18, ECF No. 313-3.
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Appendix B
25, ECF No. 313-3. He also began cleaning the recreation
area because he spent a lot of time there and wanted to
hang out in a clean space. Id. 86:24-87:5, ECF No. 336-2.
This cleaning led to him being offered a job in the VWP.
Id. 87:6-14, ECF No. 336-2.
Plaintiff Hugo Hernandez described his typical day
at the Facility, stating:
I would wake up for breakfast at 5:00 in the
morning. I will walk out, store my food, bring
it back to the cell, and go to sleep only if it was
not my time to clean. But if I was assigned to
clean, I have to stay outside and clean. I couldn’t
go back to sleep.
So I will store my food. I will wake up when
I wake up, and brush my teeth, do my coffee,
and make sure that all my cellies get the coffee
because that’s my one main thing.
Then we will all sit at the table. I will do my
legal work, go through my documents, and see
what else I need to put in or something, watch
a little bit of TV.
I can go to the phone a little bit. If—if I will get
someone to answer, I will go to the phone. Wait
for count time, wait for lunch.
After lunch, I will do a cleanup again, which is
cleanup time, and wait to see who’s assigned
for the cleanup, and if I’m not assigned, then I
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Appendix B
just go to my cell or I go against the wall just
like everybody else.
And once everything gets reopened, go back
into the table again and do some workout while
waiting—doing my workout. I wait for chow again
and wait for the cleanup, and, of course, shower.
Yeah, after the workout, shower, get back.
Wait for chow, clean up, and then eventually
wait for the GEO guard, Officer Blacknick, to
come and pick me up so we can go to the law
library and collect all detainees who wanted to
go to the library.
We’ll go to the law library, get a pat-down,
go inside the law library. And in there, I
will help detainees with their documents,
printouts, making sure they understood what
the immigration judge was asking them to
bring back, translations, looking for any specific
application they were looking for.
And then once we were done, like an hour later
or an hour and a half later, I get another patdown, get taken back to the cell, and wait for
count time.
And after count time, the last count time, you
have to be inside your cell and the doors got to
be locked in already. And then it’s another day.
Hugo Hernandez Dep. 107:2-108:22, ECF No. 306-5.
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Appendix B
Hugo Hernandez testified that he knew cleaning the
common area was mandatory “[b]ecause the GEO guard
would tell you that it’s in the handbook, and if you refuse,
you were going to be sent to the hole.” Id. 159:8-12, ECF
No. 336-4. He avoided going to the hole because he was
afraid it would destroy his immigration case. Id. 166:415, 167:19-168:1, 170:10-13, ECF No. 336-4. Nevertheless,
he stated that he did not consider the language in the
Facility’s Detainee Handbook under the heading “Housing
Unit Sanitation” to be threatening. Id. 58:12-24, ECF No.
306-5. Hugo Hernandez recalled one detainee telling the
officers that he was not going to clean because he was not
a janitor and that they needed to hire someone to do that.
Id. 74:23-75:2, ECF No. 336-4. A GEO officer then took
out a trash bag and said, “Just pack your stuff because
you’re going to go to the hole. . . . Just here’s your bag
and go to the hole.” Id. 75:3-11, ECF No. 336-4. But the
detainee was not sent to segregation because he “started
cleaning right away.” Id. 77:4-7, ECF No. 336-4. Hugo
Hernandez testified that he witnessed the garbage bag
routine “multiple times with different guards.” Id. 161:1519, ECF No. 336-4. He recounted another incident in
which one detainee refused to clean and other detainees,
including himself and Plaintiffs Alejandro Menocal,
Marcos Brambila, and Demetrio Valerga, then refused as
well. Id. 78:15-18, 80:9-20, ECF No. 336-4. In response, a
GEO sergeant was called, and the sergeant advised that
if they refused to clean, they would be sent to the hole,
which he said was not a place they wanted to be because
it was cold and they would lose their privileges and be
lonely. Id. 78:19-79:5, ECF No. 336-4. The sergeant also
told the detainees that GEO would make sure the judge
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Appendix B
received documents showing they were “coming from the
hole.” Id. 79:6-18, ECF No. 336-4. Hugo Hernandez also
remembered that other detainees would sometimes jump
in to help clean in order for everyone to have access to
the TVs and phones. Hugo Hernandez Dep. 78:2-9, ECF
No. 336-4.
Plaintiff Jesus Gaytan testified that it was scary and
intimidating to be in the Facility with a bunch of people he
did not know and who were older than him. Gaytan Dep.
28:11-29:2, 48:20-50:2, ECF No. 336-10. He was also afraid
of getting in trouble there because he thought it would
hurt his immigration case. Id. 12:1-13, ECF No. 336-10.
Mr. Gaytan explained that new detainees at the Facility
often refused to clean and the officers would tell them if
they did not clean the pod they would have to go to solitary
confinement. Id. 113:5-17, 142:23-144:1, ECF No. 336-10.
As incentives to clean, Mr. Gaytan received Xboxes, ice
cream, and other treats. Id. 124:3-16, ECF No. 306-10.
When Plaintiff Valerga first arrived at the Facility,
his cellmate informed him that he could be put in solitary
confinement if he did not clean. Valerga Dep. 168:20-169:6,
ECF No. 339-16. A GEO officer later told Mr. Valerga the
same. Id. 135:15-20, 137:12-14, ECF No. 271-7. Mr. Valerga
nevertheless refused to clean. Id. 137:8-9, ECF No. 2717. Yet, he was not taken to segregation. Id. 138:2-5, ECF
No. 271-7. Instead, ICE officers woke him up, pulled him
out of the unit, and advised him that GEO could put him
in segregation if he did not clean. Id. at 138:9-23, ECF
No. 271-7. Despite these warnings, Mr. Valerga was never
sent to segregation for refusing to clean. Id. 140:8-13,
ECF No. 271-7.
63a
Appendix B
Plaintiff Dagoberto Vizguerra does not remember
receiving the Facility’s Detainee Handbook or viewing
the orientation video. Vizguerra Dep. 90:24-91:22, 92:1-5,
ECF No. 313-8. But the second or third day he was at the
Facility he saw a detainee being placed in administrative
segregation for refusing to clean. Id. 48:9-19, ECF
No. 336-8. He also described how officers sometimes
screamed at detainees about not cleaning and being sent
to segregation. Id. 98:2-10, ECF No. 336-8.
Plaintiff Grisel Xahuentitla similarly testified:
When you are inside, you—you have—you feel
this pressure, you feel this emotionally depressed,
besides me suffering from depression. Besides
that, you feel very depressed for the situation
where you’re in at the moment. And—And they
tell you, “This is what you have to do.” And
they’re not—they’re, of course, not—They’re
not whispering you to your ear. They’re loud,
and so they—so you feel a little intimidated.
Of course, it is their job, and so you feel like
you don’t have rights in there. You—Like I
said, you feel intimidated. And if they tell you
“clean, because you’re going to the hole,” first,
I’m going to clean. I don’t want to go to the hole.
Xahuentitla Dep. 137:4-19, ECF No. 336-14. Additionally,
Ms. Xahuentitla recalled how a woman in her dorm was
assigned to clean but was sick, and so she offered to clean
for the woman. Id. 73:19-25, ECF No. 336-14. But a GEO
officer told them that the woman had to clean and, if she
did not, she would be sent to segregation, which “wasn’t
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Appendix B
going to be . . . pleasant.” Id. 74:4-9, ECF No. 336-14. In
the end, the woman was not placed in segregation, and
Ms. Xahuentitla did not experience anyone else being sent
there. Id. 120:23-121:15, ECF No. 313-9.
When class member Alejandro Hernandez was detained
at the Facility, he asked a GEO officer, “[W]hy should I
clean all of the tables if I []did not use all of the table[s]?”
Alejandro Hernandez Dep. 60:8-12, ECF No. 336-13.13 He
then stated he would only clean the area where he ate. Id.
As a result, he was handcuffed and taken to segregation.
Id. 60:12-14, 81:22-82:3, 141:15-19, ECF No. 336-13.
I am guided by this careful review of the record
as I analyze the pending motions, which again are: (1)
the parties’ Cross Motions for Summary Judgment on
GEO’s assertion of derivative sovereign immunity and
its government contractor defense; (2) GEO’s Motion to
13. In a footnote, GEO argues “Plaintiffs should be estopped
from introducing individual experiences of class members who
are not named Plaintiffs to avoid trial devolving into a number of
smaller mini-trials and to avoid undue prejudice to GEO.” Mot.
for Decertification ECF No. 312 at 16 n.8. Plaintiffs respond that
they “never represented that they did not intend to introduce
any testimony from detainees; to the contrary, they argued that
testimony from class representatives (as well as from three detainees
who provided declarations in support of class certification) would
be sufficient.” Resp. to Mot. for Decertification, ECF No. 339 at 10
n.11 (citing Pls.’ Discovery Order Br., ECF No. 144 at 12-13). At this
time, I will not rule that Plaintiffs are estopped from presenting
the testimony of class members who are not named Plaintiffs, as
Plaintiffs did not definitively state that no such testimony would be
relied on at trial. However, this issue may be more appropriate for
a motion in limine.
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Appendix B
Dismiss for Plaintiffs’ failure to join ICE as a party; (3)
GEO’s Motion for Summary Judgment on the merits of
Plaintiffs’ claims; and (4) GEO’s Motion for Decertification
of the TVPA class.
II. Cross Motions for Summary Judgment on GEO’s
Assertion of Derivative Sovereign Immunity
and Government Contractor Defense
(ECF Nos. 260 & 284)14
GEO generally argues that its policies at issue in
this case were required by its contract with ICE and, as
a r
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