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

No. 24-758

In the Supreme Court of the United States

___________________

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 THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AS AMICUS CURIAE

SUPPORTING PETITIONER

___________________

Jonathan D. Urick

Kevin R. Palmer

U.S. CHAMBER LITIGATION

CENTER

1615 H St., NW

Washington, DC 20062

Michael R. Huston

Counsel of Record

PERKINS COIE LLP

2525 E. Camelback Road

Suite 500

Phoenix, AZ 85016-4227

(202) 434-1630

mhuston@perkinscoie.com

Nicholas S. Crown

PERKINS COIE LLP

700 Thirteenth St., N.W.

Suite 800

Washington, DC 20005-3960

Shae McPhee

PERKINS COIE LLP

1301 Second Avenue

Suite 4200

Seattle, WA 98101-3099

TABLE OF CONTENTS

Interest of Amicus Curiae .................................................. 1

Summary of Argument ....................................................... 2

Argument ............................................................................. 6

A. Derivative sovereign immunity supports the

government’s ability to perform its basic

functions. .................................................................. 6

1. Derivative sovereign immunity ensures

that governments can leverage the talents

of the private sector. ......................................... 6

2. Government contractors that benefit from

derivative sovereign immunity are

indispensable providers of essential goods

and services. ..................................................... 11

B. Permitting government contractors to take

interlocutory appeals from orders denying

derivative immunity similarly serves crucial

public interests. ..................................................... 18

C. The court of appeals erred in dismissing this

appeal...................................................................... 22

Conclusion .......................................................................... 24

ii

TABLE OF AUTHORITIES

Pages

CASES

Abney v. United States,

431 U.S. 651 (1977) ........................................ 20, 23, 24

Ackerson v. Bean Dredging LLC,

589 F.3d 196 (5th Cir. 2009) ............................... 16, 17

Adkisson v. Jacobs Eng’g Grp., Inc.,

790 F.3d 641 (6th Cir. 2015) ............................... 16, 17

Barnett Bank of Marion Cnty., N.A.

v. Nelson,

517 U.S. 25 (1996) ........................................................ 7

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) ................................................ 7, 10

Brady v. Roosevelt S.S. Co.,

317 U.S. 575 (1943) ................................ 1, 6, 18, 20, 22

Bronson v. La Crosse & M.R. Co.,

67 U.S. (2 Black) 524 (1862) ...................................... 21

Campbell-Ewald Co. v. Gomez,

577 U.S. 153 (2016) .......................... 6, 7, 15, 18, 22, 23

Chae v. SLM Corp.,

593 F.3d 936 (9th Cir. 2010) ..................................... 15

Childs v. San Diego Family Housing LLC,

22 F.4th 1092 (9th Cir. 2022) .................................... 17

Cohen v. Beneficial Indus.

Loan Corp.,

337 U.S. 541 (1949) .......................... 4, 5, 19, 20, 22, 24

Coopers & Lybrand v. Livesay,

437 U.S. 463 (1978) .................................................... 19

iii

Fidelity Fed. Sav. & Loan Ass’n v.

de la Cuesta,

458 U.S. 141 (1982) ...................................................... 7

Filarsky v. Delia,

566 U.S. 377 (2012) .......................... 2, 6, 7, 8, 9, 11, 21

Helstoski v. Meanor,

442 U.S. 500 (1979) ........................................ 20, 23, 24

In re U.S. Off. of Pers. Mgmt. Data Security

Breach Litig.,

928 F.3d 42 (D.C. Cir. 2019) ............................... 15, 16

In re World Trade Center Disaster

Site Litig.,

521 F.3d 169 (2d Cir. 2008) ................................. 16, 17

Martin v. Halliburton,

618 F.3d 476 (5th Cir. 2010) ..................................... 17

McMahon v. Presidential Airways, Inc.,

502 F.3d 1331 (11th Cir. 2007) ................................. 17

Mitchell v. Forsyth,

472 U.S. 511 (1985) ................................ 5, 9, 20, 21, 23

Nixon v. Fitzgerald,

457 U.S. 731 (1982) .............................................. 20, 23

Novoa v. GEO Grp., Inc.,

No. 17-cv-02514, 2018 WL 4057814

(C.D. Cal. Aug. 22, 2018)........................................... 15

Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc.,

506 U.S. 139 (1993) ........................................ 19, 20, 23

Richardson v. McKnight,

521 U.S. 399 (1997) ...................................................... 9

Washington v. GEO Grp., Inc.,

283 F. Supp. 3d 967 (W.D. Wash. 2017) .................. 15

iv

Williams v. Morgan,

111 U.S. 684 (1884) .................................................... 21

Wyatt v. Cole,

504 U.S. 158 (1992) ...................................................... 7

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

309 U.S. 18 (1940) .............................................. 6, 7, 22

STATUTES

28 U.S.C. § 1291 ............................................................... 21

Judiciary Act of 1789, § 22, 1 Stat. 73 ........................... 21

OTHER AUTHORITIES

17 C.F.R. § 229.103.......................................................... 10

California Department of General

Services, Statewide Procurement Data

Dashboards, Department Spend

(July 1, 2025),

https://perma.cc/3MZE-WLCY ......................... 14, 15

Florida Department of Financial Services,

Florida Accountability Contracting

System, Contract Amount by Agency

(July 25, 2025),

https://facts.fldfs.com/Charts/Top5Amo

untByAgency.aspx .................................................... 14

Legislative Budget Board, Texas State

Contracts (July 25, 2024),

https://contracts.lbb.texas.gov/ ................................ 14

Lucas, Nicholas C., The Hidden Costs of

Lawsuits Continue to Grow, U.S.

Chamber of Commerce (Nov. 20, 2024),

https://www.uschamber.com/lawsuits/

hidden-costs-lawsuits-grow ...................................... 10

v

Malone, Jason, Derivative Immunity:

The Impact of Campbell-Ewald Co. v.

Gomez, 50 Creighton L. Rev. 87 (2016) .................. 10

Marrero, Victor, The Cost of Rules,

the Rule of Costs,

37 Cardozo L. Rev. 1599 (2016) ......................... 18, 19

Moore, Adam Reed, A Textualist Defense

of a New Collateral Order Doctrine, 99

Notre Dame L. Rev. Reflection 1 (2023) ................ 21

Nelson, Caleb, Preemption,

86 Va. L. Rev. 225 (2023) ............................................ 7

Sabatino, Jack M., Privatization and

Punitives: Should Government

Contractors Share the Sovereign’s

Immunities from Exemplary

Damages?, 58 Ohio St. L.J. 175 (1997) ................... 10

Secretary of the Air Force Public Affairs,

Air Force Awards Contract for Next

Generation Air Dominance (NDAG)

Platform, F-47 (Mar. 21, 2025),

https://www.af.mil/News/ArticleDisplay/Article/4131345/air-forceawards-contract-for-next-generationair-dominance-ngad-platform-f-4 ...................... 12, 13

U.S. Department of Defense, Contracts for

July 28, 2025,

https://www.defense.gov/News/

Contracts/Contract/Article/4257577/ ...................... 13

U.S. General Services Administration,

Acquisition Gateway Forecast Tool,

https://perma.cc/KEF2-UXYS .......................... 13, 14

vi

U.S. Government Accountability Office,

A Snapshot of Government-Wide

Contracting for FY 2021

(Aug. 25, 2022),

https://www.gao.gov/blog/snapshotgovernment-wide-contracting-fy-2021interactive-dashboard ............................................... 11

U.S. Government Accountability Office,

A Snapshot of Government-Wide

Contracting for FY 2023

(June 25, 2024),

https://www.gao.gov/blog/snapshotgovernment-wide-contracting-fy-2023interactive-dashboard ............................................... 12

U.S. Government Accountability Office,

A Snapshot of Government-Wide

Contracting for FY 2024

(June 24, 2025),

https://www.gao.gov/blog/snapshotgovernment-wide-con-tracting-fy-2024interactive-dashboard ......................................... 11, 12

1

INTEREST OF AMICUS CURIAE 1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It represents approximately 300,000 direct members and indirectly represents the interests of more than three million

companies and professional organizations of every size, in

every industry sector, and from every region of the country. An important function of the Chamber is to represent

the interests of its members in matters before Congress,

the Executive Branch, and the courts. To that end, the

Chamber regularly files amicus curiae briefs in cases,

like this one, that raise issues of concern to the Nation’s

business community.

The Chamber takes no position on whether derivative

sovereign immunity applies on the facts of this case. The

Court’s decision on whether a denial of such immunity is

immediately appealable, however, could have sweeping

implications beyond the interests of the parties. Although

the question presented targets a matter of appellate jurisdiction under the collateral-order doctrine, the underlying

dispute concerns the ability of government contractors to

“obtain certain immunity in connection with work which

they do pursuant to their contractual undertaking with

the United States.” Brady v. Roosevelt S.S. Co., 317 U.S.

575, 583 (1943). As explained below, that longstanding

doctrine applies in circumstances where government employees themselves enjoy immunity. Granting derivative

immunity thus ensures that contractors are not “left hold-

1

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

part and no entity or person, aside from amicus curiae, its members, or its counsel, made any monetary contribution intended

to fund the preparation or submission of this brief.

2

ing the bag” and “facing full liability for actions taken in

conjunction with government employees who” need not

face suit despite engaging in “the same activity.” Filarsky

v. Delia, 566 U.S. 377, 391 (2012).

The Chamber is well positioned to aid this Court’s

understanding of the significance of this case to current

and prospective government contractors. Many members

of the Chamber contract to provide critical services to the

public on the government’s behalf. Those essential industries include: architecture; auditing; aviation; cybersecurity; civil, electrical, and software engineering; domestic

and national security; healthcare; information technology;

manufacturing; military logistics, supplies, and training;

and shipbuilding. Like government contractors generally,

many of the Chamber’s members rely on the protections

of derivative immunity both in setting the prices they

charge to taxpayers and, more fundamentally, in determining whether to accept government contracts in the

first place. If petitioners succeed in making it harder to

vindicate the protections of derivative sovereign immunity, then contractors across the board could be forced to

raise their prices or decline government contracts altogether—depriving the American people of essential services that private industry is best positioned to provide.

SUMMARY OF ARGUMENT

A. Because this case implicates the degree of protection afforded by the doctrine of derivative sovereign immunity, it has the potential to affect all current and prospective contractors at every level of government.

Derivative sovereign immunity offers government

contractors limited but significant protection for acts

taken on the government’s behalf௘: so long as the contractor exercises validly conferred authority and hews to the

government’s express instructions, the contractor enjoys

3

the same immunity from suit held by the government

itself. The doctrine thus ensures that contractors are not

left facing potentially ruinous liability for actions taken

under the direction of government employees—who

would enjoy immunity for the exact same conduct.

Recognizing a government contractor’s derivative

immunity advances paramount public interests that extend far beyond the parties’ dispute here. Like other immunity doctrines, derivative sovereign immunity ensures

that the government can perform essential functions. It

reduces the risk that contractors will forgo government

work, and instead permits governments to leverage the

talent and expertise of the private sector while minimizing

taxpayer expense. It encourages high-quality work and

avoids undue timidity when contractors perform tasks for,

or make recommendations to, their public-employee supervisors. And it frees both contractors and public officials from the many disruptions caused by litigation, thus

allowing them to focus on their important responsibilities

to the public. By contrast, categorically denying derivative immunity to contractors—and thereby exposing them

to the asymmetrical risk of expensive litigation and potentially ruinous liability—would likely reduce the government’s access to private-sector talent, decrease the

quality of government services, and significantly raise

costs on taxpayers.

The interests protected by derivative sovereign immunity are hardly abstract. The public relies on contractors’ specialized knowledge for indispensable services and

goods that government often cannot provide or create by

itself. The federal and state governments have contracts

worth hundreds of billions of dollars for, among other

things, advanced aircraft, aircraft carriers, cybersecurity,

courtroom security, healthcare, missile systems, military

4

logistical support, water-quality monitoring, and weapons

training. Recent litigation against contractors highlights

the importance of preserving the doctrine’s protections.

Recent contractor-defendants have included a security

firm that performs millions of background checks annually for the federal government; engineering companies

tapped for emergency clean-ups following calamitous

accidents and terrorist attacks; and logistics companies

supporting U.S. military operations. Derivative immunity

helps safeguard the public’s access to such imperative

goods and services.

B. This Court should hold that contractors may

appeal the denial of derivative immunity under the

collateral-order doctrine. Doing so would be consistent

with the appellate-procedure rules that apply to other

forms of immunity from suit, and it would promote the

important public-policy interests inherent in this immunity doctrine.

Under the collateral-order doctrine, certain district

court orders are immediately appealable when they resolve important issues that are separable from the rights

asserted in the underlying case and that are effectively

unreviewable after final judgment. Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949). This Court

has repeatedly recognized that interlocutory review is

available when a district court resolves a defendant’s

claim to immunity from federal suit. For example, orders

addressing sovereign immunity (for the President and for

Members of Congress), qualified immunity, and doublejeopardy immunity are all immediately appealable. For

good reason: Those immunities are more than a mere defense to liability; they exist to immunize litigants against

the burdens of trial itself. The important functions of each

of those immunities would be severely diminished if the

5

party claiming immunity was required to wait until final

judgment to seek appellate review.

The same principles apply to derivative immunity.

Like those other forms of immunity, derivative immunity

is not merely a defense to liability. It is the right to be free

from the burdens of litigation and trial. And permitting

prompt appellate review over the denial of derivative immunity would advance the substantive purposes of that

immunity: government contractors cannot function effectively when they are consumed—or even threatened—

with crippling litigation merely because they carry out the

will of the government.

C. The court of appeals erred in concluding that the

denial of derivative immunity, unlike orders denying any

other type of immunity from federal suit, is not a collateral

order under Cohen. The Tenth Circuit grounded its decision on a perceived overlap between the immunity and

merits inquiries. But this Court has rejected materially

identical reasoning in the contexts of Eleventh Amendment immunity and qualified immunity. In fact, this Court

has explained that some factual analysis of the plaintiff௘’s

claim is necessary to resolve any immunity question.

Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). That has

never precluded collateral review of the denial of any

other kind of immunity. Because the Cohen factors are

satisfied here, this Court should reverse the judgment of

the court of appeals.

6

ARGUMENT

A. Derivative sovereign immunity supports the

government’s ability to perform its basic functions.

This case could have staggering consequences for the

many industries and businesses that provide essential—

and extremely specialized—public services across the

country under government contract. At stake here is

not simply a procedural point of appellate jurisdiction.

Rather, this case implicates the availability and degree of

litigation protection afforded by derivative sovereign immunity, a critical doctrine on which contractors rely when

they agree to share their expertise with the government

and provide services on the public’s behalf. Diminishing

that form of immunity could saddle the federal and state

governments with higher prices and reduced services.

1. Derivative sovereign immunity ensures that

governments can leverage the talents of the

private sector.

This Court has repeatedly recognized that “[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, 317

U.S. at 583). A federal government contractor enjoys

derivative sovereign immunity only under specific circumstances: when (1) the contractor’s actions were “within the

constitutional power of Congress” and (2) the contractor

was “executing [the government’s] will” at the time.

Brady, 317 U.S. at 583 (quoting Yearsley v. W.A. Ross

Constr. Co., 309 U.S. 18, 20–21 (1940)); see CampbellEwald, 577 U.S. at 166 (explaining that “௘‘derivative immunity’௘” does not “shield[௘] the contractor from suit” if the

contractor “violates both federal law and the Government’s explicit instructions”). That well-established doc-

7

trine builds on the common law, which “did not draw a distinction between public servants and private individuals

engaged in public service in according protection to those

carrying out government responsibilities.” Filarsky, 566

U.S. at 387.

As applied to state-law actions in particular, derivative

sovereign immunity finds ample support in preemption

principles. When federal law “authorizes” private parties

“to engage in activities that” state law “expressly forbids,”

federal law prevails. Barnett Bank of Marion Cnty., N.A.

v. Nelson, 517 U.S. 25, 31 (1996); see, e.g., Fidelity Fed.

Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 154–159

(1982); see also Caleb Nelson, Preemption, 86 Va. L. Rev.

225, 261 (2000) (“If state law purports … to penalize something that federal law gives people an unqualified right to

do, then … the Supremacy Clause requires [courts] to

apply the federal rule.”). Those preemption concepts likewise apply to actions taken under government contract.

As this Court has explained, “it is clear that if th[e]

authority to carry out [a] 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.” Yearsley, 309 U.S. at 20–

21. Similar logic underlies the immunity from suit conferred under Boyle v. United Technologies Corp., 487

U.S. 500 (1988). See id. at 505–507, 512–513.

Immunizing contractors from suit in appropriate cases

“protect[s] government’s ability to perform its traditional

functions.” Wyatt v. Cole, 504 U.S. 158, 167 (1992). Indeed,

“regardless whether the individual sued … works [for the

government] full time or on some other basis,” granting

immunity from suit protects public interests “of vital importance.” Filarsky, 566 U.S. at 390; see, e.g., Boyle, 487

8

U.S. at 505–506. This case implicates at least four of those

public interests.

First, like other forms of immunity from suit, derivative sovereign immunity can “reduce[௘] the risk that contractors will shy away from government work.” CampbellEwald, 577 U.S. at 167. Immunity doctrines generally

“ensur[e] that talented candidates are not deterred from

public service.” Filarsky, 566 U.S. at 389–390. The “government’s need to attract talented individuals,” moreover,

“is not limited to full-time public employees.” Id. at 390.

When the government has “a particular need for specialized knowledge or expertise,” it often must “look outside

its permanent work force” and “secure the services of private individuals.” Ibid. Refusing to extend immunity to

contractors would produce a fundamentally unfair asymmetry: It would leave contractors “holding the bag” and

“facing full liability for actions taken in conjunction with

government employees who enjoy immunity for the same

activity.” Id. at 391. Indeed, if contractors “d[id] not receive the same”—or similar—“immunity enjoyed by their

public employee counterparts,” then it would be “more

likely that the most talented candidates” in private industry “will decline public engagements” altogether. Id. at

390. That risk is especially acute because private-sector

experts often “have freedom to select other work—work

that will not expose them to liability for government

actions.” Ibid.

Second, recognizing a contractor’s derivative immunity not only from liability, but from suit, helps to “prevent[௘] the harmful distractions from carrying out the

work of government that can often accompany damages

suits.” Filarsky, 566 U.S. at 390. The public has a significant interest “in ensuring performance of government duties free from the distractions that can accompany even

9

routine lawsuits.” Id. at 391. That interest “is also implicated when individuals other than permanent government

employees discharge these duties,” because responding to

a lawsuit could cause contractors’ “performance of any ongoing government responsibilities [to] suffer.” Ibid. And

the problems would not stop there: The disruptions

caused by a lawsuit against government contractors “will

also often affect any public employees with whom they

work by embroiling those employees in litigation.” Ibid.

Depending on each government employee’s “roles in the

dispute,” certain public officials could be “required to testify” or otherwise participate in the lawsuit. Ibid. Such

“distraction of officials from their government duties,”

Mitchell, 472 U.S. at 526 (citation omitted), would “substantially undermine an important reason immunity is

accorded to public employees in the first place,” Filarsky,

566 U.S. at 391.

Third, for those in the private sector willing to offer

their services, immunity from suit “help[s] to avoid

‘unwarranted timidity’ in performance of public duties.”

Filarsky, 566 U.S. at 389–390 (citation omitted); see Richardson v. McKnight, 521 U.S. 399, 409 (1997) (describing

“unwarranted timidity” as “the most important special

government immunity-producing concern”). That is because the mere threat of litigation is enough to impede

contractors’ efforts to serve the public. See Mitchell, 472

U.S. at 526. Without immunity from suit, a contractor

might carry out the government’s instructions with undue

caution. Such hesitance would in turn impede the public

officials under whose direction the contractor works. If

a contractor, for example, sought to limit its litigation

exposure by erring on the side of caution in providing

services—or in making recommendations—to its government supervisors, then those public officials would either

be forced to undertake the contractor’s functions them-

10

selves (which the government employees may or may not

have the capacity to do), or they would receive flawed

advice (which would reflect the contractors’ unduly reticent suggestions).

Without immunity, contractors would have good reasons to hesitate when carrying out government officials’

commands. Litigation portends exorbitant costs that continue to increase each year. “[C]osts and compensation in

the U.S. tort system amounted to $529 billion in 2022,

equivalent to 2.1 percent of U.S. GDP and $4,207 per

American household.” Nicholas C. Lucas, The Hidden

Costs of Lawsuits Continue to Grow, U.S. Chamber of

Commerce (Nov. 20, 2024). 2 Under current trends, “the

costs of lawsuits will continue to skyrocket, with overall

tort costs rising to over $900 billion by 2030.” Ibid. And

unlike their government counterparts, contractors can be

held liable for punitive damages, which introduces immense pressure to settle unmeritorious suits. See, e.g.,

Jack M. Sabatino, Privatization and Punitives: Should

Government Contractors Share the Sovereign’s Immunities from Exemplary Damages?, 58 Ohio St. L.J. 175, 219

(1997). That pressure intensifies if the litigation triggers

the SEC rule requiring publicly held companies to identify certain high-stakes litigation in their public disclosures. 17 C.F.R. § 229.103.

Fourth, derivative sovereign immunity avoids excessive taxpayer expenses. Absent immunity, the government and the public would most likely share the costs of

unnecessary litigation against government contractors,

who would be forced to raise prices to account for potential liability and litigation expense. See Jason Malone,

2

https://www.uschamber.com/lawsuits/hidden-costs-lawsuitsgrow.

11

Derivative Immunity: The Impact of Campbell-Ewald

Co. v. Gomez, 50 Creighton L. Rev. 87, 120–121 (2016). By

contrast, when government contractors need not factor

anticipated litigation fees into their costs, they can offer

lower bids and pass their savings to taxpayers. See Boyle,

487 U.S. at 510.

2. Government contractors that benefit from

derivative sovereign immunity are indispensable

providers of essential goods and services.

Preserving derivative immunity is particularly important because the federal and state governments have

increasingly relied on the private sector for its expertise

and efficiency—with good reason. The volume and variety

of existing government contracts—and the specialized

knowledge required to perform them—make plain the

importance of preserving the protection afforded by

derivative sovereign immunity. And recent lawsuits

against contractors make clear that the Court’s decision

in this case could affect scores of government services.

a. The U.S. Government Accountability Office (GAO)

reported that “[i]n Fiscal Year 2024” alone, “the federal

government committed about $755 billion” in new contracts. GAO, A Snapshot of Government-Wide Contracting for FY 2024 (June 24, 2025) (FY 2024 Snapshot). 3 That

figure reflects a significant increase from the $637 billion

in new contracts awarded just three years earlier. GAO,

A Snapshot of Government-Wide Contracting for FY

2021 (Aug. 25, 2022). 4

3

https://www.gao.gov/blog/snapshot-government-wide-contracting-fy-2024-interactive-dashboard.

4

https://www.gao.gov/blog/snapshot-government-wide-contracting-fy-2021-interactive-dashboard.

12

Those contracts allow the federal government to tap

private industry’s unique competencies, particularly in

highly complex and labor-intensive fields in which it would

be inefficient, impractical, or even impossible for government to perform the work itself. See, e.g., Filarsky, 566

U.S. at 390 (recognizing that the government often “must

look outside its permanent work force” to fulfill a “particular need for specialized knowledge or expertise”). GAO

has described how many of the federal government’s

recent contracts will “provide products and services ranging from cybersecurity software,” “consulting services,”

“[d]rugs and biologicals (medical treatments that can

include vaccines, tissue, and other products),” “aircraft

carriers,” and “fixed wing aircraft.” GAO, FY 2024 Snapshot; see also, e.g., GAO, A Snapshot of Government-Wide

Contracting for FY 2023 (June 25, 2024) (“These contracts

are used to provide products and services ranging from

aircraft and software to health care and engineering support.”). 5 In its most recent fiscal year, the government

entered more than $445.1 million in contracts for privatesector products and services on behalf of the Department

of Defense (DoD), in addition to tens of millions of dollars

in contracts to benefit the Department of Veterans

Affairs, the Department of Energy, the Department of

Health and Human Services, the General Services Administration, the Department of Homeland Security, NASA,

the Department of State, the Department of Agriculture,

and the Department of Justice. GAO, FY 2024 Snapshot.

More recently, DoD announced several significant

contracts with outside firms to advance the country’s military readiness and support the national defense. In

5

https://www.gao.gov/blog/snapshot-government-wide-contracting-fy-2023-interactive-dashboard.

13

March 2025, the Air Force entered a contract for the

development and manufacture of “the world’s first sixthgeneration fighter aircraft.” Secretary of the Air Force

Public Affairs, Air Force Awards Contract for Next Generation Air Dominance (NDAG) Platform, F-47 (Mar.

21, 2025). 6 The government lacks the capacity to build

those warplanes itself—which is why it described the outside contract as “reflect[ing] the Air Force’s commitment

to delivering cutting-edge technology to the warfighter

while optimizing taxpayer investment.” Ibid. Weeks ago,

DoD similarly announced important contracts for, among

other things, “Terminal High Altitude Area Defense

(THAAD) Interceptors” for the Missile Defense Agency;

the “acquisition, integration, installation, operations, and

maintenance” and certain communications systems “in

support of U.S. Air Forces Central Command … deployed

mission requirements” for the Defense Information Systems Agency; “architect-engineer services” for the Army;

as well as “troop housing construction” and “research on

advanced manufacturing techniques for avionics sustainment” for the Air Force. DoD, Contracts for July 28,

2025. 7 As those agreements make clear, contractors provide critical support for the Armed Forces, which rely on

voluntary conscription and cannot spare warfighters for

construction, transport, and other tasks historically assigned to soldiers.

On top of its existing contracts, the federal government forecasts that it will need to enter thousands of new

6

https://www.af.mil/News/Article-Display/Article/4131345/air

-force-awards-contract-for-next-generation-air-dominance-ng

ad-platform-f-47/.

7

https://www.defense.gov/News/Contracts/Contract/

Article/4257577/.

14

agreements for key goods and services. See U.S. General

Services Administration, Acquisition Gateway Forecast

Tool. 8 The government plans to continue partnering with

private industries for services such as auditing; cloud

storage and data security; civil engineering and dampreservation; courthouse security; electrical engineering;

information-technology support; medical second-opinions

and examinations; military-operations and logistics; software engineering; water-quality monitoring; and weapons

training (for conventional, electronic, and information

warfare)—to name only a few. Ibid. The federal agencies

currently seeking such private-sector support include the

Department of Defense, the Department of the Interior,

the Department of Labor, the Department of Veterans

Affairs, the General Services Administration, and the

Nuclear Regulatory Commission.

The federal government is hardly unique in leveraging

the talents of private industry to benefit its citizens. The

State of Florida currently has contracts worth more than

$499 billion. See Florida Department of Financial Services, Florida Accountability Contracting System, Contract Amount by Agency (July 25, 2025). 9 More than $295

billion of that total supports the Florida Agency for

Health Care Administration, another $18 billion supports

the Florida Department of Health, and some $33 billion

benefits the State’s Department of Children and Families.

Ibid. The State of Texas awarded over $40 billion in new

contracts in its fiscal year 2024 and reports more than

48,000 active contracts worth $251 billion benefiting 159

state agencies. See Legislative Budget Board, Texas

8

https://perma.cc/KEF2-UXYS.

9

https://facts.fldfs.com/Charts/Top5AmountByAgency.aspx.

15

State Contracts (July 25, 2024). 10 And California expended

more than $57 billion on government contracts in its most

recent fiscal year alone. California Department of General

Services, Statewide Procurement Data Dashboards,

Department Spend (July 1, 2025). 11

b. Recent lawsuits against government contractors—

and appellate decisions concerning derivative-sovereign

immunity—shed even further light on the breadth of

potential industries and contractors that may be affected

by this Court’s decision here.

Perhaps recognizing that government employees typically enjoy immunity for materially identical conduct,

special-interest groups have increasingly sought to impede disfavored government policies by directing lawsuits

against government contractors. Plaintiffs have brought

suit against military-recruitment contractors, CampbellEwald, 577 U.S. at 166, detention-facility contractors,

Washington v. GEO Grp., Inc., 283 F. Supp. 3d 967, 972–

973, 976 (W.D. Wash. 2017); Novoa v. GEO Grp., Inc., No.

17-cv-02514, 2018 WL 4057814, at *3 (C.D. Cal. Aug. 22,

2018) (same), and student-loan servicers, Chae v. SLM

Corp., 593 F.3d 936, 944–950 (9th Cir. 2010). In each instance, government employees likely would have enjoyed

immunity for the same challenged conduct.

Federal appellate opinions addressing derivative immunity underscore the stakes here. Consider In re U.S.

Office of Personnel Management Data Security Breach

Litigation, 928 F.3d 42 (D.C. Cir. 2019). That case involved claims arising from a data breach suffered by “a

private investigation and security firm” on which the

10

https://contracts.lbb.texas.gov/.

11

https://perma.cc/3MZE-WLCY.

16

Office of Personnel Management had “relied … to conduct

the lion’s share of the agency’s background and security

clearance investigation fieldwork.” Id. at 50. No doubt

OPM had sought assistance from a private entity because

background investigations require “collect[ing] a tremendous amount of sensitive personal information from current and prospective federal workers” across “more than

two million background checks and security clearance

investigations a year.” Ibid. Although the court of appeals

denied immunity on case-specific grounds—because it

concluded that the plaintiff had plausibly alleged that the

contractor “ran afoul of both OPM’s explicit instructions

and federal law standards,” id. at 69—that litigation

makes clear the potential impact of limiting derivative

sovereign immunity. Data security is a continuing concern, and the prospect of facing suit and liability could

deter the private sector from offering its irreplaceable

knowledge in an area of critical need, or to charge taxpayers a premium for such extremely technical services.

The Sixth Circuit’s decision in Adkisson v. Jacobs Engineering Group, Inc., 790 F.3d 641 (2015), raises similar

concerns. The plaintiffs in Adkisson brought tort claims

against an engineering firm that had contracted with the

Tennessee Valley Authority to provide “project planning,

management, and oversight to assist in the overall recovery and remediation” from a catastrophic coal-ash spill

that had left “5.4 million cubic yards of coal-ash sludge”

covering “over 300 acres of adjacent land.” Id. at 644. Similarly, the private defendants in Ackerson v. Bean Dredging LLC, 589 F.3d 196 (5th Cir. 2009), were civilengineering companies that had agreed to help the U.S.

Army Corps of Engineers dredge portions of the Mississippi River. Id. at 202–203. And In re World Trade Center

Disaster Site Litigation, 521 F.3d 169 (2d Cir. 2008),

involved private companies that had contracted to “do

17

much of the work” required during the enormous cleanup response to the 9/11 terrorist attacks. Id. at 173–174. A

ruling by this Court diminishing the degree of protection

afforded by contractors’ derivative immunity could hamper essential efforts like those shouldered by the contractors in Adkisson, Ackerson, and World Trade Center.

The cases that have been percolating in the courts of

appeals also make plain that the government’s national

defense contracts could be affected by the outcome in this

case. The defendants in McMahon v. Presidential Airways, Inc., 502 F.3d 1331 (11th Cir. 2007), had contracted

with the Department of Defense to “furnish ‘all fixed-wing

aircraft, personnel, equipment, tools, material, maintenance, and supervision necessary to perform’௘” for the

U.S. military certain “௘‘passenger, cargo, or passenger and

cargo air transportation services’ between various locations in Afghanistan, Uzbekistan, and Pakistan.” Id. at

1336. The defendant companies in Martin v. Halliburton,

618 F.3d 476 (5th Cir. 2010), were “governmental contractors providing logistical support to the United States military in Iraq.” Id. at 478–479. And the defendants in the

tort suit at issue in Childs v. San Diego Family Housing

LLC, 22 F.4th 1092 (9th Cir. 2022), were a “public-private

venture created by statute” that owned military housing

at Naval Amphibious Base Coronado, and a private company that had agreed “to provide property management

services” on base. Id. at 1094.

*

*

*

As those examples show, this case implicates contracts

across various levels of government and spanning specialized industries of all kinds. A decision undercutting the

protections of derivative sovereign immunity could have

significant consequences extending far beyond the parties

currently before this Court.

18

B. Permitting government contractors to take

interlocutory appeals from orders denying derivative

immunity similarly serves crucial public interests.

1. As just explained, derivative immunity plays an

essential role in ensuring that litigation does not deter

contractors from partnering with the government, impede their performance, or subject them to ruinous liability (and the public to higher prices). Although government

contractors perform work that is vital to the government,

their “immunity in connection with work which they do

pursuant to their contractual undertaking with the United

States,” Brady, 317 U.S. at 583—unlike the government’s

“embracive” immunity from suit—“is not absolute,”

Campbell-Ewald, 577 U.S. at 166. For that reason, government contractors are subject to litigation risks that do

not apply to the government. It is thus important for this

Court to be particularly careful to ensure that contractors

are not subjected to unwarranted litigation—that is, lawsuits challenging conduct that was within Congress’s lawful authority and directed by government officials.

Permitting timely appellate review of erroneous orders

forcing a contractor to face trial will advance that important public purpose. See ibid.

By contrast, requiring a denial of derivative immunity

to await a final-judgment appeal would defeat the substantive policy aims served by derivative immunity. It is

the specter of expensive and burdensome litigation itself

that undermines government’s ability to leverage privatesector talent. See pp. 7–11, supra. Ending legally unsupportable litigation sooner rather than later preserves valuable resources, provides stability, and allows contractors

to set expectations. “According to a 2010 survey of attorneys conducted by the Federal Judicial Center, summary

judgment motion practice increases the costs of litigation

by between twenty-two and twenty-four percent.” Victor

19

Marrero, The Cost of Rules, the Rule of Costs, 37 Cardozo

L. Rev. 1599, 1665 (2016). Those “motions typically consume from four to six months for the litigants to prepare

and file the various rounds of papers,” on top of expensive

discovery. Ibid. In turn, typically “the courts spend from

five to nine months to hold a hearing and issue a decision.”

Ibid. Determining a government contractor’s immunity

before summary judgment thus serves to limit litigation

costs and encourage the private sector to share its expertise by undertaking public contracts.

2. The same principles that animate the derivativeimmunity doctrine underlie the collateral-order doctrine

and demonstrate why a denial of immunity should be immediately appealable.

The collateral-order doctrine permits a party to take

an interlocutory appeal from an order that does not terminate the action but nevertheless “finally determine[s]

claims of right separable from, and collateral to, rights

asserted in the action, 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. This Court has generally looked to three factors in deciding whether to allow

an appeal: The order “must [1] conclusively determine the

disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be

effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468

(1978) (citing Cohen, 337 U.S. at 546).

If a district court rejects a litigant’s claim to an established right not to stand trial, “it follows that the elements

of the Cohen collateral order doctrine are satisfied.”

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc., 506 U.S. 139, 144 (1993). Indeed, since Cohen, this

20

Court has consistently applied the collateral-order doctrine to permit appeals of orders involving the denial of

immunity from trial. Orders denying motions to dismiss

on the grounds of absolute immunity are immediately

appealable. Nixon v. Fitzgerald, 457 U.S. 731, 742–743

(1982) (absolute immunity of the President from civil damages liability); Helstoski v. Meanor, 442 U.S. 500, 508

(1979) (absolute immunity under the Speech and Debate

Clause). So are orders denying a State’s Eleventh Amendment immunity, Puerto Rico Aqueduct, 506 U.S. at 144–

145, orders denying an official’s qualified immunity,

Mitchell, 472 U.S. at 530, and orders denying a criminal

defendant’s immunity right under the Double Jeopardy

Clause, Abney v. United States, 431 U.S. 651, 660 (1977).

Because immunity from federal suit is never given lightly

to any litigant, including government contractors, see

Brady, 317 U.S. at 581, preserving such immunity is “too

important to be denied review,” Cohen, 337 U.S. at 546.

This Court has recognized that allowing a prompt

appeal from a district court’s denial of immunity vindicates the interests served by immunity doctrines. Without

an interlocutory appeal, the benefits of immunity from

suit would be “effectively lost.” Mitchell, 472 U.S. 526.

And permitting immediate review helps “to avoid subjecting government officials either to the costs of trial or to

the burdens of broad-reaching discovery,” which “can be

peculiarly disruptive of effective government.” Ibid.

(cleaned up). Thus, the “application of the collateral order

doctrine” in the immunity context is “justified in part” by

the concern that the immune defendant “not be unduly

burdened by litigation.” Puerto Rico Aqueduct, 506 U.S.

at 146; see Helstoski, 442 U.S. at 508 (explaining that the

availability of immediate appeal is necessary for a Mem-

21

ber of Congress “to avoid exposure to being questioned

for acts done in either House” (cleaned up)). 12

Those principles apply with similar force in the context of government contractors’ derivative immunity.

Indeed, this Court has held that contractors, much like

government employees, are entitled to qualified immunity from suit. Filarsky, 566 U.S. at 393–394. It would

be particularly anomalous if public employees enjoy sovereign immunity for their conduct while government

contractors performing public functions under federal

employees’ express direction are burdened with litigation

and trial. This Court should reaffirm that, where a government contractor does the bidding of the government

and for that reason claims the shield of the government’s

12

In recognizing a defendant’s right to take an immediate

appeal from an order denying immunity from suit, this Court

has generally relied on the collateral-order doctrine. See, e.g.,

Mitchell, 472 U.S. at 526. But recent scholarship suggests that

orders denying immunity historically were viewed as “final

decisions” appealable under 28 U.S.C. § 1291, particularly

because the right not to stand trial would be irretrievably (and

finally) lost after such a decision. See Adam Reed Moore, A

Textualist Defense of a New Collateral Order Doctrine, 99

Notre Dame L. Rev. Reflection 1, 8–9, 28–37 (2023). Indeed, the

Judiciary Act of 1789 originally conferred on federal circuit

courts mandatory appellate jurisdiction over certain “final

decrees and judgments” of district courts. § 22, 1 Stat. 73, 84

(emphasis added). And when Congress amended the operative

text to “final decisions” in 1891, this Court already had a long

tradition of permitting appeals from “decision[s]௘” that were not

themselves judgments, but were nonetheless “final in [their]

nature” and “distinct from the general subject of litigation.”

Williams v. Morgan, 111 U.S. 684, 699 (1884) (collecting cases);

see Bronson v. La Crosse & M.R. Co., 67 U.S. (2 Black) 524, 531

(1862) (similar).

22

immunity, that contractor may seek immediate appellate

review from a court’s denial of that immunity.

C. The court of appeals erred in dismissing this appeal.

1. The Tenth Circuit’s decision below is inconsistent

with this Court’s application of the Cohen doctrine in immunity cases. As just described, the Court has repeatedly

held that orders denying immunity from federal suit warrant collateral review under Cohen. And Yearsley and

other decisions make clear that contractors who provide

public services are immune from suit in federal court.

Brady, 317 U.S. at 583 (citing Yearsley, 309 U.S. at 20–

21); see Campbell-Ewald, 577 U.S. at 166. It therefore

follows that orders denying derivative immunity trigger

immediate review under the collateral-order doctrine.

Without prompt appellate review, the defendant would be

subjected to the very burdens of litigation (and trial)

against which the immunity is supposed to protect.

2. The court of appeals dismissed petitioner’s appeal

by reasoning that an order denying a contractor’s assertion of immunity under Yearsley “cannot be reviewed

completely separate from the merits” of the complaint’s

allegations. Pet. App. 3a. The court stated that “both the

inquiries regarding Yearsley protection and the merits of

[respondents’] claims would relate to whether the government specifically directed the contractors’ actions and

whether, in practice, they deviated from the government’s

directions.” Id. at 26a. The court also took the view that

“the actual facts,” whether “as pleaded” or “established

by the evidence at the summary-judgment phase,” would

have a “significant role” in the immunity analysis. Ibid.

The court of appeals’ reasoning is irreconcilable with

this Court’s precedents. Under the collateral-order doctrine, the question whether a defendant is “entitle[d] not

to be forced to litigate” is “conceptually distinct from the

23

merits of the plaintiff௘’s claim that his rights have been

violated.” Mitchell, 472 U.S. at 527–528. Equally misguided was the lower court’s focus on the “actual facts.”

Pet. App. 26a. At least some consideration of factual allegations is necessary in any immunity appeal. For example, when considering “a double jeopardy claim, the court

must compare the facts alleged in the second indictment

with those in the first to determine whether the prosecutions are for the same offense.” Mitchell, 472 U.S. at 528.

When “evaluating a claim of immunity under the Speech

and Debate Clause, a court must analyze the plaintiff௘’s

complaint to determine whether the plaintiff seeks to hold

a Congressman liable for protected legislative actions.”

Ibid. (citing Abney, 431 U.S. at 660; Helstoski, 442 U.S. at

508; Nixon, 457 U.S. at 742–743). And in the Eleventh

Amendment context, this Court has rejected the view that

“the determination of a State or state agency’s claim to

Eleventh Amendment immunity is bound up with factual

complexities whose resolution requires trial and cases in

which it is not.” Puerto Rico Aqueduct, 506 U.S. at 147

(cleaned up). But in analyzing a claim to immunity, the

reviewing court “need not consider the correctness of the

plaintiff௘’s version of the facts, nor even determine

whether the plaintiff௘’s allegations actually state a claim.”

Mitchell, 472 U.S. at 528. Rather, a court need only

assume the complaint’s version of events and determine

the immunity question on that basis. See ibid.

The logic of Mitchell, Puerto Rico Aqueduct, Helstoski, Nixon, and Abney applies with equal force here.

As noted above, for purposes of derivative sovereign immunity the salient questions are௘: (1) whether “what was

done was within the constitutional power of Congress”

and (2) whether the contractor “performed as the Government directed.” Campbell-Ewald, 577 U.S. at 167. Neither

answer turns on the correctness of a plaintiff௘’s factual

24

allegations. The decision below therefore erred by focusing on the “actual facts.”

Finally, there can be no doubt that the other Cohen

factors are also satisfied here. Immunity from suit is

unreviewable on appeal because the right to be free of

trial is lost by the time of final review. See, e.g., Abney,

431 U.S. at 660; Helstoski, 442 U.S. at 508. And a trial

court’s denial of immunity from suit conclusively determines the immunity question. See ibid. This Court should

hold that an order denying derivative immunity is immediately appealable under the collateral-order doctrine,

and remand for appellate review of the trial court’s order.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

Jonathan D. Urick

Kevin R. Palmer

U.S. CHAMBER LITIGATION

CENTER

1615 H St., NW

Washington, DC 20062

Nicholas S. Crown

PERKINS COIE LLP

700 Thirteenth St., N.W.

Suite 800

Washington, DC 20005-3960

August 7, 2025

Michael R. Huston

Counsel of Record

PERKINS COIE LLP

2525 E. Camelback Road

Suite 500

Phoenix, AZ 85016-4227

(202) 434-1630

mhuston@perkinscoie.com

Shae McPhee

PERKINS COIE LLP

1301 Second Avenue

Suite 4200

Seattle, WA 98101-3099