Amicus Curiae Brief — The GEO Group, Inc., Petitioner v. Alejandro Menocal, et al.

No. 24-758

THE GEO GROUP, INC.,

Petitioner,

v.

ALEJANDRO MENOCAL, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF OF PROFESSOR ALEXANDER VOLOKH AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

ALEXANDER VOLOKH

Counsel of Record

EMORY UNIVERSITY

SCHOOL OF LAW

1301 Clifton Road NE

Atlanta, GA 30322

(404) 712-5225

avolokh@emory.edu

Counsel for Amicus Curiae

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT ............................................................... 6

I.

Private Parties Doing Government Work

Have Shared in Governmental Immunities. ...... 6

A. Construction Work......................................... 7

B. Prisons and Jails.......................................... 15

C. Law Enforcement ......................................... 17

D. Judicial and Quasi-Judicial Functions ....... 20

E. Postal Delivery ............................................. 23

II. Contractors Doing Government Work Should

Be Treated Like Government Officials. ............ 25

CONCLUSION ......................................................... 27

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alamango v. Bd. of Supervisors of Albany Cnty.,

32 N.Y. Sup. Ct. 551 (1881) .............................. 16

Anfield v. Feverhill,

80 Eng. Rep. 1113 (K.B. 1614) .......................... 23

Arnold v. Hubble,

38 S.W. 1041 (Ky. 1897) .................................... 17

Bellinger v. N.Y. Cent. R.R.,

23 N.Y. 42 (1861) ................................................. 8

Benner v. Atl. Dredging Co.,

31 N.E. 328 (N.Y. 1892) ................................ 7, 10

Blue Grass Traction Co. v. Grover,

123 S.W. 264 (Ky. App. 1909) ........................... 11

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) ....................... 4, 5, 12, 25, 27

Brady v. Roosevelt S.S. Co.,

317 U.S. 575 (1943) ............................................. 2

Briscoe v. LaHue,

460 U.S. 325 (1983) ..................................... 22, 23

Buhner v. Reusse,

175 N.W. 1005 (Minn. 1920) ............................. 17

Campbell-Ewald Co. v. Gomez,

577 U.S. 153 (2016) ............................................. 2

Carpenter v. Sibley,

94 P. 879 (Cal. 1908) ......................................... 17

iii

Carr v. Degnon Contracting Co.,

96 N.Y.S. 277 (App. Term 1905) ....................... 10

Chattanooga & Tenn. River Power Co. v. Lawson,

201 S.W. 165 (Tenn. 1918) ................................ 15

Combs v. Codell Constr. Co.,

52 S.W.2d 719 (Ky. App. 1932) ............... 7, 12, 26

Conklin v. N.Y., Ont. & W. Ry. Co.,

6 N.E. 663 (N.Y. 1886) ............................ 9, 10, 26

Connell v. Yazoo & M.W.R. Co.,

75 So. 652 (La. 1917) ............................... 7, 11, 27

Conwell v. Voorhees,

13 Ohio 523 (1844) ................................ 23, 24, 25

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ................................... 4, 12, 27

Cutler v. Dixon,

76 Eng. Rep. 886 (K.B. 1585) ............................ 23

De Baker v. S. Cal. Ry. Co.,

39 P. 610 (Cal. 1895) ......................................... 14

Engler v. Aldridge,

75 P.2d 290 (Kan. 1938) ................ 3, 8, 13, 14, 27

Faust v. Richland Cnty.,

109 S.E. 151 (S.C. 1921) ...................................... 3

Fitzgibbon v. W. Dredging Co.,

117 N.W. 878 (Iowa 1908) ................................. 14

Foster v. Wilcox,

10 R.I. 443 (1873) ................................................ 3

Gardemal v. McWilliams,

9 So. 106 (La. 1891) ........................................... 23

iv

Henderson v. Smith,

26 W. Va. 829 (1885) ................................... 20, 21

Hoosac Tunnel Dock & Elevator Co. v. O’Brien,

137 Mass. 424 (1884) ......................................... 23

Hunter v. Mathis,

40 Ind. 356 (1872) ........................................ 22, 27

Hutchins v. Brackett,

22 N.H. 252 (1850) ................................ 24, 25, 26

Imbler v. Pachtman,

424 U.S. 409 (1976) ........................................... 22

Jones v. Brown,

6 N.W. 140 (Iowa 1880) ..................................... 23

Kirbie v. State,

5 Tex. App. 60 (1878)......................................... 18

Larned v. Holt & Jeffery,

133 P. 460 (Wash. 1913).............................. 14, 15

Lund v. St. Paul, M. & M. Ry. Co.,

71 P. 1032 (Wash. 1903).................................... 14

Meneely v. Kinser Constr. Co.,

113 N.Y.S. 183 (App. Div. 1908) (mem) ........... 10

Moss v. Rowlett,

65 S.W. 153 (Ky. App. 1901) ............................. 11

Nelson v. McKenzie-Hague Co.,

256 N.W. 96 (Minn. 1934) ................. 7, 12, 13, 25

Newman v. Bradley Contracting Co.,

164 N.Y.S. 757 (App. Term 1917) ........... 7, 11, 27

North Carolina v. Gosnell,

74 F. 734 (C.C.W.D.N.C. 1896) ......................... 20

v

O’Reilly v. Long Island R.R. Co.,

44 N.Y.S. 264 (App. Div. 1897) ......................... 10

Ockerman v. Woodward,

178 S.W. 1100 (Ky. App. 1915) ............. 11, 12, 27

Parker v. Huntington,

68 Mass. 124 (1854) ........................................... 17

Radcliff’s Ex’rs v. Mayor of Brooklyn,

4 N.Y. 195 (1850) ................................................. 8

Reed v. Rice,

25 Ky. 44 (App. 1829) .................................. 17, 18

Richardson v. McKnight,

521 U.S. 399 (1997) ......................... 16, 22, 23, 25

Robinson v. Chamberlain,

34 N.Y. 389 (1866) ........................................... 8, 9

Robinson v. State,

18 S.E. 1018 (Ga. 1893) ............................... 19, 20

Salliotte v. King Bridge Co.,

122 F. 378 (6th Cir. 1903) ................................. 14

Sawyer v. Corse,

58 Va. (17 Gratt.) 230 (1867) ........................ 3, 25

Schneider v. Cahill,

127 S.W. 143 (Ky. App. 1910) ........................... 11

State v. James,

80 N.C. 370 (1879) ............................................. 18

State v. McMahan,

103 N.C. 379 (1889) ........................................... 18

State v. Mooring,

20 S.E. 182 (N.C. 1894) ..................................... 18

vi

Taylor v. Westerfield,

26 S.W.2d 557 (Ky. App. 1930) ................... 12, 25

Turpen v. Booth,

56 Cal. 65 (1880) ................................................ 22

United States v. Lynah,

188 U.S. 445 (1903) ........................................... 26

Weaver v. Devendorf,

3 Denio 117 (N.Y. Sup. Ct. 1846) ................ 21, 22

Williams v. Adams,

85 Mass. 171 (1861) ........................................... 15

Yearsley v. W.A. Ross Constr. Co.,

309 U.S. 18 (1940) ............. 2, 3, 4, 5, 6, 25, 27, 28

Other Authorities

Note,

A Tale of Two Systems: Cost, Quality,

and Accountability in Private Prisons,

115 Harv. L. Rev. 1838, 1868-91 (2002) ............. 1

Alexander Volokh,

Judicial Non-Delegation, the InherentPowers Corollary, and Federal Common Law,

66 Emory L.J. 1391 (2017) .................................. 1

Alexander Volokh,

The Modest Effect of Minneci v. Pollard

on Inmate Litigants,

46 Akron L. Rev. 287 (2013) ............................... 1

Alexander Volokh,

The Myth of the Federal Private

Nondelegation Doctrine,

99 Notre Dame L. Rev. 203 (2023) ..................... 1

vii

Alexander Volokh,

Prison Accountability and Performance

Measures,

63 Emory L.J. 339 (2014) .................................... 1

Alexander Volokh,

Privatization and Competition Policy, in

COMPETITION AND THE STATE

(Stanford Univ. Press 2014)................................ 1

Alexander Volokh,

Privatization and the Elusive EmployeeContractor Distinction,

46 UC Davis L. Rev. 133 (2012).......................... 1

Alexander Volokh,

Privatization and the Law and Economics

of Political Advocacy,

60 Stan. L. Rev. 1197 (2008) ............................... 1

INTEREST OF AMICUS CURIAE1

Alexander Volokh is a professor of law at Emory

Law School, where he has taught since 2009. His

teaching interests cover several areas that overlap in

this case: Torts, Administrative Law, and Legal History. His published writings cover federal common

law, privatization and delegation of governmental

power to private parties (both in general and as it relates to detention facilities), and Bivens litigation

against private prison contractors.

See, e.g., The Myth of the Federal Private Nondelegation Doctrine, 99 Notre Dame L. Rev. 203 (2023);

Judicial Non-Delegation, the Inherent-Powers Corollary, and Federal Common Law, 66 Emory L.J. 1391

(2017); Prison Accountability and Performance

Measures, 63 Emory L.J. 339 (2014); Privatization

and Competition Policy, in COMPETITION AND THE

STATE (Stanford Univ. Press 2014); The Modest Effect

of Minneci v. Pollard on Inmate Litigants, 46 Akron L.

Rev. 287 (2013); Privatization and the Elusive Employee-Contractor Distinction, 46 UC Davis L. Rev.

133 (2012); Privatization and the Law and Economics

of Political Advocacy, 60 Stan. L. Rev. 1197 (2008);

Note, A Tale of Two Systems: Cost, Quality, and Accountability in Private Prisons, 115 Harv. L. Rev. 1838,

1868-91 (2002).

He is interested in the sound development of doctrine in this area, and in particular the need for legal

1 No counsel for any party authored this brief in whole or in

part, and no party or their counsel made a financial contribution

intended to fund the preparation or submission of this brief. The

Day 1 Alliance made a monetary contribution to fund the preparation and submission of this amicus brief.

2

principles that avoid distorting the government’s decision whether to contract out for services.

SUMMARY OF THE ARGUMENT

In Yearsley v. W.A. Ross Construction Co., 309 U.S.

18 (1940), this Court held that “there is no liability on

the part of the contractor for executing [the] will” of

the federal government, provided the “authority to

carry out the project was validly conferred,” id. at 2021. See also Brady v. Roosevelt S.S. Co., 317 U.S. 575,

583 (1943) (“It is, of course, true that government contractors obtain certain immunity in connection with

work which they do pursuant to their contractual undertaking with the United States.”); Campbell-Ewald

Co. v. Gomez, 577 U.S. 153, 166 (2016) (whether this

“derivative immunity” applies depends on whether

the contractor complies with federal law and whether

the contractor follows “the Government’s explicit instructions”).

This Court did not make up the idea of derivative

immunity from whole cloth in 1940. The idea that contractors share in governmental immunities has deep

roots in pre-1940 common law. In many pre-1940

cases going back to the nineteenth century, plaintiffs

have sought to hold government contractors liable for

various forms of damage. In those cases, courts have

observed (1) that the private contractor was doing

what the government asked it to do, (2) that an immunity would apply if the government had kept the

work in-house, and (3) and that therefore, the private

contractor should benefit from the same immunity.

This is more than just a weak principle of derivative non-liability, which would hold a contractor nonnegligent when acting at the government’s behest.

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Many of the cases discussed here support a stronger

sort of immunity. Courts have often stated what may

be called a Parity Principle: that the private party doing work at the government’s behest is the government’s agent, which (at least insofar as the party isn’t

acting in ways that deviate from the government’s desire) makes it essentially a public actor—which, in

turn, justifies treating it equally to more formally governmental actors. And one comes across not only the

term “immunity,” but also the stronger term “immunity from suit,” see Engler v. Aldridge, 75 P.2d 290, 293

(Kan. 1938)—which suggests that a suit against the

contractor should not even go forward, not just that

the contractor should eventually be relieved from liability. See, e.g., Faust v. Richland Cnty., 109 S.E. 151,

160-61 (S.C. 1921) (distinguishing between the state’s

absolute “immunity from suit” and mere “immunity

from liability”); Foster v. Wilcox, 10 R.I. 443, 444 (1873)

(referring to a married woman’s “immunity from suit”

under the doctrine of coverture).

The cases are not uniform, and there are cases taking the opposite position. See, e.g., Sawyer v. Corse, 58

Va. (17 Gratt.) 230 (1867). This isn’t surprising: in our

federal system, every state is allowed to do its own

thing, and even within a state, courts are allowed to

change their minds. The important point, though, is

that the long-standing Parity Principle is most consistent with what this Court endorsed in Yearsley and

its progeny.

The principle of Yearsley—and of the common-law

caselaw that gave rise to it—is supported by a simple

policy rationale: the government should be able to

choose its agents, and legal rules should not bias the

decision of whether to produce goods or services in-

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house or contract out for their production. The Court

reaffirmed and extended this principle in Boyle v.

United Technologies Corp., 487 U.S. 500 (1988):

The financial burden of judgments against

the contractors would ultimately be passed

through, substantially if not totally, to the

United States itself, since defense contractors will predictably raise their prices to

cover, or to insure against, contingent liability for the Government-ordered designs. To

put the point differently: It makes little

sense to insulate the Government against financial liability for the judgment that a particular feature of military equipment is necessary when the Government produces the

equipment itself, but not when it contracts

for the production.

Id. at 511-12. (Of course Boyle, which operated against

the backdrop of the FTCA’s pre-existing waiver of sovereign immunity, concerned only defenses, not immunities, but the policy considerations are similar.)

See also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72

(2001) (“Whether it makes sense to impose asymmetrical liability costs on private prison facilities alone is

a question for Congress, not us, to decide.”).

To be sure, the government generally has less control over independent contractors than it has over its

own employees and agencies, so it makes sense to be

concerned about contractors’ independent choices.

However, when the contractor is doing what the contract demands, its independent choices are not at issue, so the Parity Principle is at its apex. See Yearsley,

309 U.S. at 20 (work complained of was “authorized

and directed by . . . governmental officers”); Boyle, 487

5

U.S. at 512 (explaining various limits to federal-contractor immunity, including that “the United States

approved reasonably precise specifications” and “the

equipment conformed to those specifications”).

The treatment of contractors acting as their contract demands should be the same as if the government had kept the work in-house. This implies not

only relief from liability, but also application of the

same procedural rules that would otherwise apply, including the rules about when to appeal an adverse ruling on the issue of derivative immunity. Allowing governmental organizations and employees to appeal adverse immunity rulings as collateral orders—but requiring that contractors suffer through the ordeal of

litigation before appealing—would introduce a wedge

between employees and contractors that would violate

the Parity Principle and strike at the whole rationale

of derivative immunity.

Recognizing immediate appealability is consistent

with the Parity Principle as endorsed in the longstanding caselaw leading up to Yearsley, is supported

by compelling considerations of policy, and is a natural use of this Court’s long-recognized power to make

federal common law in the handful of areas involving

“uniquely federal interests.” See Boyle, 487 U.S. at 505

(“The present case involves an independent contractor

performing its obligation under a procurement contract . . . but there is obviously implicated the same

interest in getting the Government’s work done.”).

6

ARGUMENT

I. Private Parties Doing Government Work

Have Shared in Governmental Immunities.

This Part discusses pre-Yearsley caselaw, going

back to the nineteenth century, where private parties

were often granted immunity in various contexts

when they were acting at the behest of government;

this included government contractors acting within

the scope of their contract.

The following sections illustrate the wide variety

of contexts where courts endorsed the Parity Principle. Section A discusses cases where, like in Yearsley,

the contractor defendant was engaged in various

forms of construction work, often related to navigation

or railroads. Section B discusses cases where, like in

this case, the defendant was running detention facilities. Section C discusses other cases where the defendant was engaged in law enforcement—as a private

prosecutor or a member of a law enforcement officer’s

posse comitatus. Section D discusses various cases

where private parties acted in judicial or quasi-judicial capacities. And Section E discusses postal cases,

where the issue is whether a postal contractor should

be considered a public agent for purposes of liability

for the acts of its own servants.

These cases not only state a principle of non-liability but also endorse the Parity Principle: that private

parties doing government work should be considered

the government’s agents and subjected to the same

rules as government.

7

A. Construction Work

In the following cases, contractors were relieved of

liability when acting within the scope of their government contracts.

One can imagine a non-liability rule that would relieve contractors of liability only if they were non-negligent. Even such a weak rule would have bite, for instance when the cause of action is trespass (where allegations of negligence aren’t required) or in cases involving blasting (where the general rule is strict liability). See, e.g., Benner v. Atl. Dredging Co., 31 N.E.

328 (N.Y. 1892); Combs v. Codell Constr. Co., 52

S.W.2d 719 (Ky. App. 1932); Nelson v. McKenzieHague Co., 256 N.W. 96 (Minn. 1934). So such a rule

would still sometimes relieve government contractors

of liability relative to their counterparts doing nongovernmental construction work.

Some of the cases below do indeed focus on the nonnegligence of the government contractors. But others—for instance, the Kentucky cases, Newman v.

Bradley Contracting Co., 164 N.Y.S. 757 (App. Term

1917), or Connell v. Yazoo & M.W.R. Co., 75 So. 652,

654 (La. 1917)—endorse a stronger principle. In these

cases, the courts specifically note that the government

wouldn’t be liable, and that the contractor would

therefore be relieved of liability; or they note that the

way to figure out the contractor’s liability would be to

imagine that the state were standing in court in the

contractor’s stead. The contractor’s liability regime is

derivative of the governmental liability regime, because the contractors are essentially agents of the

state.

8

The equal-treatment principle endorsed in these

cases—the Parity Principle—supports a rule of equal

treatment for these agents of the state for all manner

of procedural rules. For instance, Engler characterizes

the immunity not just as a defense to liability but as

an “immunity from suit,” 75 P.2d at 293.

A few cases from New York illustrate the main

themes. In Bellinger v. New York Central Railroad, 23

N.Y. 42 (1861), a railroad company built a road across

a creek, as a result of which a nearby landowner’s land

was flooded. The New York Court of Appeals held that

the railroad company was not liable for this consequential damage:

[W]here persons are authorized by the legislature to perform acts in which the public

are interested, such as grading, leveling and

improving streets and highways and the

like, and they act with proper care and prudence, they are not answerable for the consequential damages which may be sustained

by those who own lands bounded by the

street or highway. The doctrine is equally

applicable to the construction of a railroad

by a private corporation, for the enterprise is

considered a public one, and the authority is

conferred for the public benefit.

Id. at 48 (citing Radcliff’s Ex’rs v. Mayor of Brooklyn,

4 N.Y. 195 (1850)) (emphasis added). A later New

York case further endorsed the Parity Principle. In

Robinson v. Chamberlain, 34 N.Y. 389 (1866), Justice

Peckham denied that there should be any difference

between an officer and a contractor in charge of maintaining canals:

9

Each agrees to do his duty—the contractor

in writing, the officer by implication and by

his oath. Upon every principle of sound reason their liability to persons injured by their

negligence should be the same.

Id. at 395 (Peckham, J.) (emphasis added). Justice

Hunt, writing in the same case, agreed:

I do not discover in these laws any provision

that requires the contractor to take the oath

required . . . to be taken by every public officer . . . . It is possible that he may not,

therefore, be technically a public officer. . . .

[H]owever, . . . [h]e is invested with the powers and duties of a public officer, and if he

neglects to perform them, and an individual

sustains damages thereby, I think he should

be liable as a public officer.

Id. at 402 (Hunt, J.) (emphasis added).

In Conklin v. New York, Ontario & Western Railway Co., 6 N.E. 663 (N.Y. 1886), the court wrote:

[The railroad company] may [engage in its

construction work] without compensation to

the corporation whose land is occupied, and

whose convenience is disturbed; and the sole

justification is that it may properly be

treated as a public corporation, engaged in

the accomplishment of a public purpose; so

that when, under the statute, a railroad

company, as it is commanded to do, enters

upon the restoration of a highway, it becomes, for the time and at the place, the constituted public authority to make the restora-

10

tion; and, if it does so with reasonable prudence and skill, encounters no greater liability than would attend the same change if

made by the usual public authority.

Id. at 666 (emphasis added). Of course, the railroad

wasn’t actually a public authority; the court merely

said that “it may properly be treated that way” because it was fulfilling “a public purpose . . . under the

statute . . . as it is commanded to do.” And the measure

of its liability was explicitly tied to what the liability

would have been if “the same change [were] made by

the usual public authority.”

Benner is to the same effect. In that case, the vibrations of the air and earth due to a federal government contractor’s blasting work caused damage to a

house 3000 feet away. The New York Court of Appeals

stressed the government’s immunity. 31 N.E. at 329.

And because the contractor’s work “was done under

the government, for the government” (and not “for the

benefit of private ownership”), the contractor had to

be treated the same: “[T]he consequential injury . . .

must be remediless. The defendant had the authority

of the government and kept within it, and, therefore,

is not liable.” Id. at 330; see also Meneely v. Kinser

Constr. Co., 113 N.Y.S. 183, 184 (App. Div. 1908)

(mem) (“If the state had the right so to do, its servant

acting in its behalf, or one who by contract does its

work, is guilty of no wrong in so doing.”); cf. O’Reilly

v. Long Island R.R. Co., 44 N.Y.S. 264, 265 (App. Div.

1897) (“The liability of the defendant, though a common carrier, was, as to its sidewalks, simply the same

as that of a municipality,—the duty of exercising reasonable care.”); Carr v. Degnon Contracting Co., 96

N.Y.S. 277, 278 (App. Term 1905) (similar).

11

And the endorsement of the Parity Principle didn’t

just extend to the measure of liability. In Newman,

the appellate court wrote that, “although the work

was being done here by a private corporation, it stood

in the place of the city, and was entitled to all of the

immunities and privileges which the city itself would

be entitled to were it performing the work . . . .” 164

N.Y.S. at 760. The court understood that to truly

“st[and] in the place of” the government, it was necessary to have equal treatment across the board (even if

sovereign immunity wasn’t on the table in that particular case, which involved a municipal government).

Several other courts have held similarly.

The Louisiana Supreme Court used the same

stand-in-the-shoes reasoning as New York’s Newman

court: “[T]he defendant company does not stand in the

case as a trespasser and tort-feasor, but stands in the

shoes of the city; stands precisely as the city herself

would stand if she had done the work directly, without

the intervention of defendant, and were now at the bar

instead of defendant.” Connell, 75 So. at 654 (emphasis added).

Kentucky courts took the same parity position for

several decades. In Moss v. Rowlett, 65 S.W. 153 (Ky.

App. 1901), the state appellate court wrote that “the

contractor simply takes the place of the overseer,” and

there is no cause of action against the contractor

“which could not be maintained against a county overseer.” Id. at 155; see also Blue Grass Traction Co. v.

Grover, 123 S.W. 264, 266 (Ky. App. 1909) (“In maintaining the bridge [the contractor] simply acts for

Fayette county . . . .”); Schneider v. Cahill, 127 S.W.

143, 144 (Ky. App. 1910). In Ockerman v. Woodward,

178 S.W. 1100 (Ky. App. 1915), the court stressed the

12

essential identity between the state government and

contractors: first, because the state government

(through the county) can only act through agents; and

second, in terms that would be directly echoed in

Boyle, 487 U.S. at 511-12, and Malesko, 534 U.S. at

72, because any greater expense imposed on contractors is ultimately paid by the government:

[T]he county, being an arm of the government, is not liable. In taking care of the public roads and bridges, it must exercise its

governmental functions either through its

officers, agents, and employés or contractors. If the contractor was held liable, then

the real burden would fall on the county, because of the excessive price it would be required to pay for the work.

Ockerman, 178 S.W. at 1100. Cases like Taylor v.

Westerfield, 26 S.W.2d 557, 558-61 (Ky. App. 1930),

held that this immunity didn’t extend to negligent

work, but derivative immunity continued to apply for

non-negligent cases. See, e.g., Combs, 52 S.W.2d at

720 (in a blasting case that otherwise would have been

governed by strict liability, the contractor had “immunity from liability” as long as the work was done

non-negligently, because “he is but the agent of a department of the commonwealth”).

In Nelson, a case about damage to a home due to

blasting from bridge construction, the Minnesota Supreme Court explicitly characterized the contractor as

the “agent of the state,” stressed the contractor’s legal

duty to act as it did, and tied the contractor’s liability

to the state’s:

13

Our state highways are built by the state itself, in its capacity as a sovereign. Their construction is not merely authorized; it is directed. The highway commissioner is the

agent of the state for that purpose. Mandatory is his duty to construct roads and the

bridges necessary to make them complete.

Once he has contracted for their construction, it is the legal duty of the contractor to

perform his contract. Such a contract makes

the contractor the agent of the state and

clothes him with something more than mere

authority to proceed. It puts upon him the

legal duty to do so. How, then, so long as he

is guilty of no negligence or trespass, does he

commit a legal wrong in performing, in the

only way it can be performed, the affirmative duty he owes the state? . . .

If the contractor in such case is to be held

liable for consequential damages, it must

follow, irresistibly, that the highway commissioner is equally so. But the latter result

we have definitely negatived.

256 N.W. at 98.

In Engler, the victim of a bridge and highway contractor’s construction activity sued for damage to his

land due to the contractor’s negligence. He argued

“that the state’s immunity from suit should not be extended to the contractor.” 75 P.2d at 293. The Kansas

Supreme Court wrote:

Appellant concedes that the State Highway

Commission is immune from suit under the

circumstances and that he has no cause of

14

action against it for building the bridge and

approaches, but he argues that, while a

large number of courts give to independent

contractors the same immunity as given the

state, the rule is without sound reason to

support it and the contractor should be held

responsible for damages that result because

the improvement was made under plans and

specifications alleged to be obviously unsound as a matter of engineering practice;

and that such unsoundness was known to

the contractor when he performed the work.

Id. at 292. But the court rejected that argument; and

it extended to the contractor an immunity that it characterized as an immunity from suit.

See also De Baker v. S. Cal. Ry. Co., 39 P. 610, 616

(Cal. 1895); Salliotte v. King Bridge Co., 122 F. 378,

383 (6th Cir. 1903) (“The King Bridge Company was

but an agent of the townships in the construction of

this bridge, and is entitled to any exemption from liability which exists in favor of the supervisors or of the

state itself. . . . The act of the King Bridge Company

cannot be regarded as its personal act, but as that of

the supervisors authorizing this bridge. If there has

been any appropriation, it has been by the public, for

the benefit of the public . . . .”); Lund v. St. Paul, M. &

M. Ry. Co., 71 P. 1032, 1034 (Wash. 1903) (“The respondent stood in the place of the city, and we should

inquire under what circumstances the city would have

been liable. . . . [T]he city itself would not have been

liable if the work had been necessarily delayed without any neglect of its own . . . . The same was true of

respondent . . . .”); Fitzgibbon v. W. Dredging Co., 117

N.W. 878, 880 (Iowa 1908); Larned v. Holt & Jeffery,

15

133 P. 460, 461 (Wash. 1913) (“[T]he fact that appellant was doing public improvement work for the city,

which, though appellant was an independent contractor, was under the direction and control of the city,

places appellant in the same position that the city

would be in had it been prosecuting the work itself, so

far as liability for damages to respondent flowing

therefrom is concerned; that is, if the city was not liable for consequential damages, upon the same principle appellant would not be.”); Chattanooga & Tenn.

River Power Co. v. Lawson, 201 S.W. 165, 170 (Tenn.

1918).

B. Prisons and Jails

Various courts have also recognized immunities

for contractors operating detention facilities.

In Williams v. Adams, 85 Mass. 171 (1861), the

Massachusetts Supreme Judicial Court examined

whether prisoners in “common jails and houses of correction” could sue their jailers “to recover damages for

alleged injuries arising from their failure to provide

suitable and proper food, clothing and warmth of

rooms for such prisoners.” Id. at 171. The Court concluded that there could be liability if there were a

“question of personal violence unlawfully inflicted

upon the prisoner, or of assault and battery and false

imprisonment, or of any want of jurisdiction on the

part of the defendant to detain the prisoner in the

manner he did,” id.; but if there were no malice or

gross negligence, there could be no liability, id. at 176,

and accountability was to be provided by the board of

overseers, id. at 174.

Whether the jailer in Williams could be characterized as private isn’t clear from the opinion, though

16

Justice Scalia wrote in his Richardson v. McKnight

dissent that the case “appears to have conferred immunity upon an independent contractor,” 521 U.S.

399, 415 (1997) (Scalia, J., dissenting), citing various

institutional details of jailers’ jobs under Massachusetts law, id. at 415 n.1.

Alamango v. Board of Supervisors of Albany

County, 32 N.Y. Sup. Ct. 551 (1881), is clearer on the

not-formally-public status of the defendants. A prisoner sued the operators of a prison for their negligence

in making him approach a circular saw without

proper precautions. The prison was “by act of the legislature ‘authorized and directed’ to establish a penitentiary in the county of Albany for the punishment of

persons convicted of crimes and misdemeanors in that

county.” Id. at 551. The New York Supreme Court

took pains to stress that the prison operators “do not

act in any private capacity” while engaged in their

duty; that they were “a mere instrumentality selected

by the State” and that their duty—“punishing criminals”—is “inherent in the Sovereign power”; and that

those whom the state selects, “while engaged in that

duty, stand so far in the place of the State.” Id. at 552.

None of that language would have been necessary if

this had been a clearly governmental prison.

The court analogized operating prisons to “the laying out and maintaining of highways” and other types

of government contract work, and said that “[i]n the

performance of all such duties it is settled by the

unanimous agreement of the courts that these agencies are not liable for neglect or misfeasance unless

the liability is especially imposed by statute.” Id.

Alamango thus also endorses the view that a contractor “stand[s] . . . in the place of the State.”

17

C. Law Enforcement

In an age before governmental prosecutors were

universal, private prosecutors were kept in line by the

action of malicious prosecution. Malice was, of course,

a required element of malicious prosecution, so private prosecutors had a built-in (though not absolute)

immunity. See, e.g., Parker v. Huntington, 68 Mass.

124, 128 (1854). And many cases throughout the nineteenth and early twentieth centuries likewise denied

absolute immunity to governmental prosecutors, so

this was also an example of the Parity Principle. See,

e.g., Arnold v. Hubble, 38 S.W. 1041, 1041 (Ky. 1897);

Carpenter v. Sibley, 94 P. 879, 879-80 (Cal. 1908);

Buhner v. Reusse, 175 N.W. 1005, 1006 (Minn. 1920).

Issues of immunity have also arisen in the context

of private citizens who assist officers—for instance, in

executing a warrant as part of the posse comitatus.

In Reed v. Rice, 25 Ky. 44 (App. 1829), the owner

of property seized pursuant to a search warrant

brought an action of trespass against the people who

had taken his property. Though the warrant turned

out to have been illegal, the court held that “individuals summoned by the officer” could validly obey the

officer’s commands “without inquiring whether his

authority was legal or illegal.” Id. at 46. This principle

applied to anyone summoned, even private individuals:

There is something which instantly strikes

the moral sense, as being wrong, when told

that a citizen is regarded a trespasser, for

conscientiously aiding to execute the law, as

he conscientiously believed at the time. . . .

[I]f he acts under the command of another,

18

and that other, in cases of the kind, may

have lawful authority to command him,

then we think he ought not to be responsible. In such cases, the citizen, obeying the officer, should be looked upon in the light of a

servant, acting by compulsion, and the party

injured should seek redress against the officer and those who act “officiously.”

Id. at 47 (emphasis added). The private citizen was

treated as though he was “a servant,” having a duty

to act as he did; and all such servants were entitled to

the same immunity.

The idea that a warrant is enough to protect the

law enforcement officer’s posse—generally ordinary

citizens, not officers—runs through the caselaw, and

courts speak generally in terms of anyone aiding the

officer. See, e.g., Kirbie v. State, 5 Tex. App. 60, 63

(1878) (“[A]t the time of the interference by these defendants a warrant had issued for the arrest of Parker, the validity of which is not questioned, and that

the warrant, agreeably to the charge, was sufficient to

protect the posse of the constable.”); State v. James,

80 N.C. 370, 372 (1879) (“[T]he protection which [the

warrant] affords is not restricted to the officer to

whom it is directed, but equally extends to all who

may aid him in its execution. . . . [T]he justification is

full to the officer and all who co-operated with him

. . . .”); State v. McMahan, 103 N.C. 379 (1889) (“It is

the duty of those present, when necessary and called

upon, to aid the officer, and the protection extended to

the officer extends to persons so aiding.”); State v.

Mooring, 20 S.E. 182, 182 (N.C. 1894) (“[I]f [an officer]

act in good faith in [executing process], both he and

his posse comitatus will be protected.”).

19

The Georgia Supreme Court, in Robinson v. State,

18 S.E. 1018 (Ga. 1893), was explicit in treating the

posse member acting under the sheriff’s orders as no

longer a private citizen and entitled to the same immunities as the sheriff himself:

When citizens are thus summoned by the

sheriff, they are, while co-operating with

him and acting under his orders, not themselves officers, nor are they mere private

persons, but their true legal position is that

of a posse comitatus. . . . A member of a posse

comitatus summoned by the sheriff to aid in

the execution of a warrant for felony in the

sheriff's hands is entitled to the same protection in the discharge of his duties as the sheriff himself; and to this end a person so summoned may do any act to promote or accomplish the arrest which he could lawfully do

were he himself the sheriff, having personal

custody of the warrant, and bound to execute the same.

Id. at 1019 (emphasis added). The court limited this

protection to those who were commanded by the officer, and the officer had to be “in some sense present,”

even if only “constructively.” Id. But if the officer is

constructively present (even if a great distance away),

the private individual assisting him is merely an extension of the officer:

[W]e think the sheriff was at least constructively present when Powell was attempting

to arrest Robinson, although the officer was

not in sight at that time. He was using Powell to accomplish the arrest, just as though

he had reached out his own arm, supposing

20

it was physically possible for him to do so,

over the entire distance, and had taken hold

of the person of Robinson himself. Powell

was really a mere physical agency employed

by the sheriff, by means of which the officer

was enabled to extend his presence to the

scene of action.

Id. at 1019-20 (emphasis added); see also North Carolina v. Gosnell, 74 F. 734, 738 (C.C.W.D.N.C. 1896)

(“Duly-summoned assistants of an officer are under

the same protection of the law which is afforded to the

officer who has process in his hands. Both judicial and

ministerial officers, in the execution of the duties of

their office, are under the strong protection of the law;

and their legally summoned assistants, for such time

as in service, are officers of the law.”).

D. Judicial and Quasi-Judicial Functions

Private parties have also enjoyed immunity when

they have exercised judicial or quasi-judicial functions. Various cases show that immunity for judicial

or quasi-judicial functions was determined by function, not formal public or private status.

For instance, in Henderson v. Smith, 26 W. Va. 829

(1885), a deed was declared void because of mistakes

made by a notary public. The victim of the notary’s

mistake sued the notary, alleging the notary’s “gross

negligence and unskilfulness.” Id. at 829. The West

Virginia Supreme Court of Appeals wrote that “the official act of taking the privy examination of a married

woman, whether done by a court, justice, or notary, is

a judicial act, or as it is sometimes designated a quasijudicial act,” id. at 834. (“An officer possessing such

discretionary powers is spoken of as a judicial or

21

quasi-judicial officer from the likeness of his discretionary functions to those of a judge who decides controversies between individuals,” id. at 836—as opposed to someone with merely ministerial duties, that

is, ones that involve no discretion.) And a person who

performs a quasi-judicial act “is not liable to any private person for a neglect to exercise those powers, nor

for the consequences of a lawful exercise of them

where no corruption or malice can be imputed, and he

keeps within scope of authority.” Id.

The court continued, clearly adopting a functional

approach: “Persons exercising judicial functions, by

whatever name they may be called, enjoy the protection of this judicial privilege. . . . Thus jurors, in determining their verdict act judicially. So do courts martial, election-officers, commissioners in bankruptcy,

&c.” Id. at 836-37 (emphasis added).

The Henderson court mentioned the privilege enjoyed by jurors; on that subject, the New York Supreme Court (the highest court in New York at the

time) similarly wrote, in Weaver v. Devendorf, 3 Denio

117 (N.Y. Sup. Ct. 1846):

[N]o public officer is responsible in a civil

suit, for a judicial determination, however

erroneous it may be, and however malicious

the motive which produced it. Such acts,

when corrupt, may be punished criminally,

but the law will not allow malice and corruption to be charged in a civil suit against such

an officer, for what he does in the performance of a judicial duty. The rule extends to

judges from the highest to the lowest, to jurors, and to all public officers, whatever

22

name they may bear, in the exercise of judicial power.

Id. at 120 (emphasis added).

And the same is true for grand jurors. In Turpen v.

Booth, 56 Cal. 65 (1880), the California Supreme

Court interpreted a state statute to mean “that no

grand juror shall be held liable for damages in a civil

action for anything done by him in the grand-jury

room,” and noted that “this is but a statutory declaration of the principle as it existed at common law.” Id.

at 67. The Supreme Court of Indiana held the same in

Hunter v. Mathis, 40 Ind. 356 (1872), and gave the following policy rationale, based on society’s need for

grand jurors:

Few persons would be willing to act as grand

jurors, if, upon the testimony of their fellows

or others who are entrusted with the performance of duties in connection with their deliberations concerning the manner in which

they discharged their duties, whether with

too much activity and zeal or not, they would

be liable to be subjected to an action and to

the payment of damages.

Id. at 358. And this Court has noted that the similarity of immunities is due to the “functional comparability” of the grand jurors’ (and various others’) judgments to those of the judge. See Imbler v. Pachtman,

424 U.S. 409, 423 n.20 (1976) (also citing Turpen,

Hunter, and other cases); Richardson, 521 U.S. at 417

(Scalia, J., dissenting) (citing Imbler).

This Court in Briscoe v. LaHue, 460 U.S. 325

(1983), likewise noted that “[t]he immunity of parties

and witnesses from subsequent damages liability for

23

their testimony in judicial proceedings was well established in English common law.” Id. at 330-31 (citing

Cutler v. Dixon, 76 Eng. Rep. 886 (K.B. 1585); Anfield

v. Feverhill, 80 Eng. Rep. 1113 (K.B. 1614)); id. at 331

n.11 (citing many American nineteenth- and earlytwentieth-century decisions to this effect); see also

Gardemal v. McWilliams, 9 So. 106, 108 (La. 1891)

(“This privilege extends to parties, counsel, witnesses,

jurors, and judges in a judicial proceeding, to proceedings in legislative bodies, and to all who, in the discharge of public duty or the honest pursuit of private

right, are compelled to take part in the administration

of justice or in legislation.”).

To all these functions, one could add arbitrators

chosen by the parties, who were exempt from liability

as quasi-judicial officers. See, e.g., Jones v. Brown, 6

N.W. 140, 143 (Iowa 1880); Hoosac Tunnel Dock & Elevator Co. v. O’Brien, 137 Mass. 424 (1884).

“In short, the common law provided absolute immunity from subsequent damages liability for all persons—governmental or otherwise—who were integral

parts of the judicial process.” Briscoe, 460 U.S. at 335;

see also Richardson, 521 U.S. at 418 (quoting Briscoe).

E. Postal Delivery

While the cases discussed above illustrate instances where private parties were held to be immune, the principle is true more generally: various

courts have often held private parties doing governmental work to be subject to the same rules as government agents, whatever those rules might be.

Two postal cases illustrate the principle in the context of liability for the negligence of one’s servants. In

Conwell v. Voorhees, 13 Ohio 523 (1844), defendants,

24

contractors to carry U.S. mail, were sued for losing a

package due to their negligence and that of their

agents. The issue was whether the contractor was a

public or private agent—a determination that affected

various aspects of his liability, such as whether he was

liable to anyone injured or only to his principal, and

whether he was liable for the negligence of his servants. The court concluded that the mail contractor

was a public agent:

A mail carrier has no contract with those

who transmit articles by the public mail; he

receives no fee or reward from them. His

contract is with the government of the

United States, for the performance of acts in

execution of a public function. He is remunerated by the government. The duty he

takes upon himself by the contract he is

sworn to perform. He acts for the general

government in the performance of a function

which the government is charged to have executed. So far, then, as the transmission of

the mail is concerned, a mail contractor is a

public agent . . . .

Id. at 542. And because the contractor was a public

agent, he was subject to the same rules as government

actors. Id. at 542-43.

Similarly, in Hutchins v. Brackett, 22 N.H. 252

(1850), the court held that a mail contractor was not

liable for the negligence of its servant, because that

servant “acts as a public agent, in the discharge of a

public duty, and not as the mere servant of the contractor, who employs him.” Id. at 256.

25

II. Contractors Doing Government Work Should

Be Treated Like Government Officials.

The cases discussed in Part I supra are just a sampling of the cases where private parties had immunity

for governmental work they did; there are more. See,

e.g., Richardson, 521 U.S. at 407 (“Apparently the law

did provide a kind of immunity for certain private defendants, such as doctors or lawyers who performed

services at the behest of the sovereign.”).

There are cases going the other way, as one would

expect in a federal system; states are allowed to develop their own policies and can overrule themselves

over time. For instance, the Virginia Supreme Court

of Appeals disapproved of the postal cases Conwell

and Hutchins in Sawyer, 58 Va. (17 Gratt.) at 245-46,

and the Kentucky Court of Appeals cut back on contractor immunity in construction cases in Taylor, 26

S.W.2d at 558-61. But the cases catalogued here are

more consistent with the Parity Principle—and with

the approach that this Court finally adopted in Yearsley and later reaffirmed and extended in Boyle.

These cases do not merely show that contractors

doing government work should not be held liable.

They also illustrate the following broader principles.

1. Government employees may be required to do

what the government tells them to do. But—once they

have agreed to a contract—the same is true of contractors. See, e.g., Conwell, 13 Ohio at 542 (“The duty [the

mail carrier] takes upon himself by the contract he is

sworn to perform.”); Nelson, 256 N.W. at 98 (“[I]t is

the legal duty of the contractor to perform his contract.”).

26

This is also true in the posse comitatus and the

quasi-judicial function cases. Even though the courts

often justify immunities in those cases by treating the

participants as though they were acting on compulsion, not all of the people involved are truly compelled

to participate. However, they are still immune because of the role they play in the system.

2. When a private party does what the government

has asked of him, his act—as this Court said in United

States v. Lynah, 188 U.S. 445 (1903)—is “the act of the

government,” id. at 465. It may make practical sense,

in tort law and elsewhere, to distinguish between employees (i.e., “servants”) and independent contractors

based on the degree of control that the principal exercises, because we are rightly concerned that contractors’ incentives may not be fully aligned with the government’s. But this consideration is minimized when

the contractor is doing what the government contract

requires; then, the distinction between different kinds

of government agents fades, and their acts should be

attributed to the government.

See, e.g., Hutchins, 22 N.H. at 256 (1850) (mail contractor “acts as a public agent, in the discharge of a

public duty”); Conklin, 6 N.E. at 666 (the contractor

“becomes, for the time and at the place, the constituted public authority to make the restoration”);

Combs, 52 S.W.2d at 720 (the contractor “is but the

agent of a department of the commonwealth”).

3. Such contractors should not only have a defense

to liability but also benefit from the full panoply of

procedural advantages that the government would

have, as though the government were standing in

their place.

27

See, e.g., Newman, 164 N.Y.S. at 760 (corporation

“was entitled to all of the immunities and privileges

which the city itself would be entitled to were it performing the work”); Connell, 75 So. at 654 (“[T]he defendant company . . . stands precisely as the city herself would stand if she had done the work directly . . .

and were now at the bar instead of defendant.”); Engler, 75 P.2d at 293 (characterizing contractor’s immunity as the state’s “immunity from suit”).

4. The idea of immunity for private parties is

backed by various policy considerations, including the

governmental interest in attracting people to do government work while preserving public resources. See,

e.g., Ockerman, 178 S.W. at 1100 (“If the contractor

was held liable, then the real burden would fall on the

county . . . .”); Hunter, 40 Ind. at 358 (“Few persons

would be willing to act as grand jurors, if . . . they

would be liable to be subjected to an action and to the

payment of damages.”).

These ideas are very ancient and at the same time

very modern. See Boyle, 487 U.S. at 511-12 (“The financial burden of judgments against the contractors

would ultimately be passed through, substantially if

not totally, to the United States itself . . . .”); Malesko,

534 U.S. at 72 (“Whether it makes sense to impose

asymmetrical liability costs on private prison facilities

alone is a question for Congress, not us, to decide.”).

CONCLUSION

This Court recognized a derivative immunity for

government contractors in Yearsley. It reaffirmed and

extended this principle in Boyle. And it relied on similar policy considerations in cases like Malesko. This

idea—the Parity Principle—has deep roots in pre-

28

Yearsley common law. And it cannot be fully implemented unless private parties acting at the government’s behest can benefit from the full range of procedural advantages that the government itself would

have, including—in the modern context—immediate

appealability of adverse immunity determinations under the collateral-order rule.

For these reasons, this Court should reverse and

remand.

Respectfully submitted,

ALEXANDER VOLOKH

Counsel of Record

EMORY UNIVERSITY

SCHOOL OF LAW

1301 Clifton Road NE

Atlanta, GA 30322

(404) 712-5225

avolokh@emory.edu

Counsel for Amicus Curiae

AUGUST 2025