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.,

v.

Petitioner,

ALEJANDRO MENOCAL, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

BRIEF FOR AMICUS CURIAE PUBLIC

CITIZEN IN SUPPORT OF RESPONDENTS

NANDAN M. JOSHI

Counsel of Record

SCOTT L. NELSON

ALLISON M. ZIEVE

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

njoshi@citizen.org

September 2025

Attorneys for Amicus

Curiae Public Citizen

i

TABLE OF CONTENTS

Table of Authorities .................................................... ii

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

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

Argument .................................................................... 5

I.

Under Yearsley, a government contractor’s

defense to liability is not tied to the sovereign’s

immunity from suit. ............................................. 6

II. The Yearsley defense for government contractors

is distinct from the immunities of government

officials. ............................................................... 13

Conclusion ................................................................. 21

ii

TABLE OF AUTHORITIES

Cases

Pages

Acheson Hotels, LLC v. Laufer,

601 U.S. 1 (2023) ...................................................... 1

Armstrong v. Exceptional Child Center, Inc.,

575 U.S. 320 (2015) ................................................ 14

Bivens v. Six Unknown Federal

Narcotics Agents,

403 U.S. 388 (1971) ................................................ 15

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) .......................... 1, 17, 18, 19, 20

Brady v. Roosevelt Steamship Co.,

317 U.S. 575 (1943) ........................ 10, 11, 12, 13, 19

Butters v. Vance International, Inc.,

225 F.3d 462 (4th Cir. 2000) .................................. 11

Bynum v. FMC Corp.,

770 F.2d 556 (5th Cir. 1985) .................................. 11

Campbell-Ewald Co. v. Gomez,

577 U.S. 153 (2016) .................... 6, 10, 11, 14, 17, 21

Ex parte Young,

209 U.S. 123 (1908) ................................................ 14

Farmers v. WDAY, Inc.,

360 U.S. 525 (1959) ................................................ 11

FCC v. Consumers’ Research,

145 S. Ct. 2482 (2025) ...................................... 16, 17

FDIC v. Meyer,

510 U.S. 471 (1994) .................................................. 8

Filarsky v. Delia,

566 U.S. 377 (2012) ........................ 14, 16, 19, 20, 21

iii

Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974) ................................................ 11

Hafer v. Melo,

502 U.S. 21 (1991) ............................................ 14, 15

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .......................................... 15, 16

Hopkins v. Clemson Agricultural College of

South Carolina,

221 U.S. 636 (1911) ................................................ 13

Kentucky v. Graham,

473 U.S. 159 (1985) .......................................... 14, 15

Lac du Flambeau Band of Lake Superior

Chippewa Indians v. Coughlin,

599 U.S. 382 (2023) .................................................. 1

Lamar v. Browne,

92 U.S. 187 (1875) ........................................ 9, 10, 17

Larson v. Domestic & Foreign

Commerce Corp.,

337 U.S. 682 (1949) ................................................ 14

Lewis v. Clarke,

581 U.S. 155 (2017) .......................................... 14, 15

Logue v. United States,

412 U.S. 521 (1973) ................................................ 19

Martin v. United States,

145 S. Ct. 1689 (2025) .............................................. 1

Mitchell v. Forsyth,

472 U.S. 511 (1985) .......................................... 13, 16

Murray’s Lessee v. Hoboken Land &

Improvement Co.,

18 How. (59 U.S.) 272 (1856) ............................... 8, 9

iv

Nixon v. Fitzgerald,

457 U.S. 731 (1982) .......................................... 13, 16

Pratt v. Hercules, Inc.,

570 F. Supp. 773 (D. Utah 1982) ........................... 11

Procunier v. Navarette,

434 U.S. 555 (1978) ................................................ 20

Richardson v. McKnight,

521 U.S. 399 (1997) .................................... 19, 20, 21

Sloan Shipyards Corp. v. U.S. Shipping Board

Emergency Fleet Corp.,

258 U.S. 549 (1922) .......................................... 12, 13

The Paquete Habana,

175 U.S. 677 (1900) ................................................ 10

The Paquete Habana,

189 U.S. 453 (1903) ................................................ 10

United States v. Arthrex, Inc.,

594 U.S. 1 (2021) .................................................... 17

United States v. Lynah,

188 U.S. 445 (1903) .................................................. 8

United States v. Orleans,

425 U.S. 807 (1976) ................................................ 19

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

103 F.2d 589 (8th Cir. 1939) .................................... 6

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ................................................ 21

Washington Metropolitan Area Transit

Authority v. Johnson,

467 U.S. 925 (1984) ................................................ 11

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

309 U.S. 18 (1940) .................................. 1–17, 20, 21

v

Statutes

28 U.S.C. § 2671 ........................................................ 19

28 U.S.C. § 2680(a) ................................................... 18

Other

Black’s Law Dictionary (12th ed. 2024) ................... 11

INTEREST OF AMICUS CURIAE 1

Amicus curiae Public Citizen is a nonprofit

consumer advocacy organization with members in all

50 states. Public Citizen appears before Congress,

administrative agencies, and courts to promote

enactment and enforcement of laws protecting

consumers, workers, and the public. Public Citizen

has long sought to preserve and expand access to

courts for individuals harmed by corporate or

government wrongdoing, and to maintain the federal

courts’ authority to provide appropriate redress

efficiently and effectively. Public Citizen has thus filed

amicus briefs in this Court that advocate for legal

principles that minimize barriers to individuals’

access to court remedies. See, e.g., Martin v. United

States, 145 S. Ct. 1689 (2025); Acheson Hotels, LLC v.

Laufer, 601 U.S. 1 (2023); Lac du Flambeau Band of

Lake Superior Chippewa Indians v. Coughlin, 599

U.S. 382 (2023).

Public Citizen submits this amicus brief because it

is concerned that corporate defendants are invoking

so-called “derivative sovereign immunity” to escape

accountability for wrongful actions taken while

carrying out government contracts. This Court has

held that federal government contractors have a

defense to liability when they can show that their

challenged actions complied with the government’s

lawful instructions. See Yearsley v. W.A. Ross Constr.

Co., 309 U.S. 18 (1940); Boyle v. United Techs. Corp.,

487 U.S. 500 (1988). But the increasing use of the label

1 This brief was not written in whole or in part by counsel for

a party. No one other than amicus curiae or its counsel made a

monetary contribution to the preparation or submission of this

brief.

2

“derivative sovereign immunity” to describe that

defense has led to confusion in the lower courts,

potentially increasing the costs to plaintiffs seeking to

hold these contractors accountable for wrongs where

that defense is unavailable. In this case, petitioner

and its amici argue that a district court’s rejection of

a “derivative sovereign immunity” defense should give

rise to an immediate appeal in the same way that an

immediate appeal can be taken from the rejection of a

defense of sovereign immunity, absolute immunity, or

qualified immunity. Public Citizen believes that such

an outcome would increase the costs of litigation for

plaintiffs, delay the ability of plaintiffs with valid

claims to obtain relief, and reduce the incentive of

corporations with government contracts to adhere to

their legal responsibilities.

SUMMARY OF ARGUMENT

While Yearsley provides a defense to liability to

government contractors for actions taken pursuant to

the government’s lawful instructions, this defense is

neither “derivative sovereign immunity” nor akin to

the immunities that protect discretionary decisions by

government officials. The availability of interlocutory

appeals in cases involving such governmental

immunities thus provides no basis for allowing

interlocutory appeals when a trial court declines to

dismiss an action or grant a defendant summary

judgment based on the Yearsley defense.

I. In Yearsley, this Court recognized a defense that

protects government contractors from liability for

harm caused by work performed pursuant to a

government contract. To invoke the defense, the

contractor must show that the work at issue was

within the government’s authority and that the

3

government validly authorized the contractor to

perform it. Yearsley, however, does not describe that

defense as derived from the government’s sovereign

immunity. To the contrary, Yearsley recognized that

the question whether a contractor can be held liable is

distinct from the question whether a plaintiff has a

remedy directly against the government.

The precedents on which Yearsley relied confirm

that the Yearsley defense is not derivative of the

sovereign’s immunity from suit. Those precedents

principally address federal officials carrying out their

charge rather than corporate contractors. Nonetheless, the cases consistently confirm that whatever

protections government agents have against liability

for their conduct are distinct from the immunity from

suit to which the government is entitled as sovereign.

Although this Court has occasionally referred to

the Yearsley defense as an “immunity,” it has never

endorsed the lower courts’ increasingly common

practice of treating the defense as based on “derivative

sovereign immunity.” And in context, the Court’s use

of the term “immunity” indicates that Yearsley establishes a substantive defense to the merits of a claim,

rather than an immunity akin to the sovereign

immunity of the federal government.

II. This Court has recognized that a government

official may invoke certain immunities against suit

when named as a defendant, in either an official or

personal capacity, in a lawsuit challenging his or her

actions. The Yearsley defense is not akin to those

immunities.

In an official-capacity suit, where the relief sought

would run against the government, the official may

attempt to invoke sovereign immunity. A government

4

contractor, though, has no “official capacity” and the

relief sought in an action against a contractor does not

run against the government. The Yearsley defense

thus is not and cannot be based on a government

official’s invocation of sovereign immunity when sued

in an official capacity.

By contrast to an official-capacity lawsuit, a

government official sued in his or her personal

capacity is the real party in interest and cannot invoke

sovereign immunity. The official may, however,

attempt to invoke absolute or qualified immunity

where the lawsuit challenges the official’s exercise of

discretionary decisionmaking authority. A contractor,

however, can never exercise the type of discretionary

government authority that absolute and qualified

immunities are designed to protect. And Yearsley does

not purport to grant contractors protection for making

discretionary choices, but rather a defense when their

actions are lawfully dictated by the government. The

Yearsley defense is therefore wholly distinct from the

immunities that attach to government officials.

This Court has recognized the critical distinction

between government officials and contractors.

Military contractors, for instance, are protected

through preemption from state tort liability for design

defects, but only to the extent a government officer

was aware of the risks and approved the design. That

protection does not arise because the contractor

shares in the immunity that government officials

enjoy; it arises because the officials’ approval provides

the contractor with a defense to liability. Likewise,

this Court has rejected the argument that prison

guards employed by private prisons operating under a

state contract are entitled to the qualified immunity

5

enjoyed by prison guards employed directly by the

state.

In short, there is nothing in this Court’s precedents

that justifies treating the Yearsley defense as

derivative of sovereign immunity or akin to the

immunities that government officials receive. The

Court should clarify that important point for the

benefit of the lower courts.

ARGUMENT

This case presents the question whether a

government contractor may appeal a district court

order before final judgment when the order rejects the

contractor’s argument that it cannot be held

accountable for its allegedly unlawful actions because

those actions were performed pursuant to a federal

government contract. In Yearsley, this Court held that

government contractors are protected from liability in

certain circumstances for actions taken to carry out

their contractual obligations to the federal government. Yearsley, however, did not explicate the nature

of that protection. In recent years, lower courts have

increasingly adopted the term “derivative sovereign

immunity” to describe the defense to liability recognized in Yearsley. The term “derivative sovereign

immunity,” however, is a misnomer because the

defense neither derives from a sovereign’s immunity

from suit nor is connected with the immunity that

federal officials receive when they exercise discretion

in carrying out their constitutional or statutory

responsibilities.

Almost a decade ago, this Court rejected “the

notion that private persons performing Government

work acquire the Government’s embracive immunity”

when the “contractor violates both federal law and the

6

Government’s explicit instructions.” Campbell-Ewald

Co. v. Gomez, 577 U.S. 153, 166 (2016). To bring

clarity to the lower courts, the Court should confirm

that the Yearsley defense is distinct from and

unconnected to the immunities that the government

or government officials possess. Instead, the defense

operates as an affirmative defense to liability that,

like other affirmative defenses to the merits of a claim,

can be reviewed on appeal after final judgment.

I.

Under Yearsley, a government contractor’s

defense to liability is not tied to the

sovereign’s immunity from suit.

A. In Yearsley, the Court considered whether a

contractor could be held liable for work performed

“pursuant to a contract with the United States

Government, and under the direction of the Secretary

of War and the supervision of the Chief of Engineers

of the United States, for the purpose of improving the

navigation of the Missouri River, as authorized by an

Act of Congress.” 309 U.S. at 19. The case arose when

landowners sued the contractor because the work had

eroded a portion of their land. W.A. Ross Constr. Co. v.

Yearsley, 103 F.2d 589, 590 (8th Cir. 1939). The

landowners prevailed, and the contractor appealed.

On appeal, the court of appeals tied the landowners’

ability to “maintain this action against the contractor

alone” to the question whether the erosion “constituted an appropriation or taking of property for which

compensation should be made.” Id. at 591–92. The

court of appeals reversed the jury verdict because it

concluded that the work performed was not a taking.

Id. at 592–93.

This Court affirmed on different grounds. To start,

the Court stated that, “[w]here an agent or officer of

7

the Government purporting to act on its behalf has

been held to be liable for his conduct causing injury to

another, the ground of liability has been found to be

either that he exceeded his authority or that it was not

validly conferred.” Id. at 21. Because in Yearsley the

“authority to carry out the project was validly

conferred,”—that is, “what was done was within the

constitutional power of Congress”—the contractor was

not liable. Id. at 20; see id. at 22. Thus, in the context

of “a taking by the Government of private property for

public use,” the Court explained, “the remedy to

obtain compensation from the Government is as

comprehensive as the requirement of the Constitution, and hence it excludes liability of the Government’s representatives lawfully acting on its behalf in

relation to the taking.” Id. at 22. That is, the

contractor had a defense, although the government

itself could be held to account.

The Court’s opinion in Yearsley does not use the

word “immunity,” much less “sovereign immunity” or

“derivative sovereign immunity.” Further, its

reasoning is inconsistent with the notion that a

government contractor’s protection from liability is

connected to governmental immunity from suit.

Rather, Yearsley rests on the Fifth Amendment

requirement that the government pay just compensation when it takes property and the availability of a

mechanism for obtaining compensation directly from

the government. Thus, Yearsley recognizes that,

although the government could be sued to obtain

compensation for a taking, the contractor had a

defense to liability because it followed the government’s lawful instructions in undertaking the work.

Unlike the court of appeals, this Court’s decision

recognized that the government’s duty to pay

8

compensation and the contractor’s liability were

distinct questions.

From Yearsley, it follows that if the government

had authorized its agent to take action that would be

unconstitutional, the contractor could not assert a

defense to liability. 309 U.S. at 20 (requiring “what

was done” to be “within the constitutional power of

Congress”). Sovereign immunity, by contrast,

generally “shields the government and its agencies”

from damages actions for constitutional torts absent

its consent, regardless of their merits. See FDIC v.

Meyer, 510 U.S. 471, 475 (1994); Murray’s Lessee v.

Hoboken Land & Imp. Co., 18 How. (59 U.S.) 272, 283

(1856). Thus, Yearsley contemplates that a government contractor may be held liable even where the

government may not be—an outcome that further

indicates that the Yearsley defense is not based on

sovereign immunity principles.

B. The cases on which Yearsley relies do not

suggest that the contractor’s protection from liability

is derivative of the government’s immunity from suit.

Yearsley quotes United States v. Lynah for the

principle that the “action of the agent is ‘the act of the

government.’” 309 U.S. at 22 (quoting 188 U.S. 445,

465 (1903)). But Lynah does not hold that an agent

becomes clothed in the government’s immunity when

it acts on behalf of the government. Rather, Lynah

holds that the federal government becomes obligated

to provide just compensation when it authorizes its

officers and agents to take actions that constitute a

Fifth Amendment taking. Id. at 465–66, 468. The

liability of the officers and agents was not considered

in that case.

9

In Murray’s Lessee, also cited in Yearsley, the

Court considered whether a distress warrant issued

by the government to a tax collector was an unconstitutional exercise of judicial power. 18 How. (59 U.S.)

at 274–75. The government’s agents there were

officials, not corporations operating under a

government contract. Id. at 274 (referring to a U.S.

marshal and the solicitor of the Treasury). In

upholding Congress’s authority to create new

liabilities to which the judicial power could apply, the

Court noted the background principle that a public

agent “cannot be made responsible in a judicial

tribunal for obeying the lawful command of the

government.” Id. at 283. But the Court described the

government’s immunity differently: “[T]he government itself, which gave the command, cannot be sued

without its own consent.” Id. Thus, Murray’s Lessee,

like Yearsley, treats the defense of the agent as

distinct from the sovereign immunity of the government.

Lamar v. Browne, 92 U.S. 187 (1875), also involved

only federal officials. There, a colonel in the Union

Army, acting pursuant to orders, seized Lamar’s

cotton and turned it over to agents of the U.S.

Treasury specially appointed by statute to receive and

collect captured property. Id. at 188–89. In an action

to recover the value of the cotton, the Court held that

the agents could not be held liable for their actions “[i]f

they followed the law after the property came into

their hands,” where they received “specific” instructions from the Treasury Department to guide their

actions. Id. at 199. Lamar observed that Congress had

authorized the court of claims to provide redress to

owners of captured property and concluded that

“[t]hose aggrieved must look to the government, and

10

not to the agents, for their indemnity.” Id. at 195–96.

Thus, in Lamar, as in Yearsley, the officials had a

defense to liability because they obeyed the government’s lawful command—not because they shared in

the government’s (waived) immunity.

Finally, The Paquete Habana, 189 U.S. 453 (1903),

expressly states that a government agent’s protection

from liability is not tied to sovereign immunity. In an

earlier iteration of that case, this Court rejected a libel

brought by the government to seize fishing vessels. Id.

at 464 (citing The Paquete Habana, 175 U.S. 677

(1900)). After remand for calculation of damages, the

government sought this Court’s review and argued

that “the decrees should have gone against the captors

[of the vessels] and not against the Government.” Id.

Rejecting the government’s argument, the Court

explained that, “when the act of a public officer is

authorized or has been adopted by the sovereign

power, whatever the immunities of the sovereign, the

agent thereafter cannot be pursued.” Id. at 465

(emphasis added; citing Lamar, 92 U.S. at 199). In

other words, an agent’s protection from liability for its

lawful compliance with governmental directions is not

derived from sovereign immunity and applies even

when the government may not be immune from suit

by the plaintiff.

C. Although this Court has referred to the Yearsley

protection as an “immunity” enjoyed by government

contractors, see Campbell-Ewald, 577 U.S. at 166

(quoting Brady v. Roosevelt S.S. Co., 317 U.S. 575, 583

(1943)), the unadorned term “immunity” does not

suggest that government contractors have “derivative

sovereign immunity.” The phrase “derivative sovereign immunity” began to appear in the lower courts

decades after Yearsley to describe the protection from

11

liability that Yearsley affords. See, e.g., Butters v.

Vance Int’l, Inc., 225 F.3d 462, 466 (4th Cir. 2000);

Bynum v. FMC Corp., 770 F.2d 556, 564 (5th Cir.

1985); Pratt v. Hercules, Inc., 570 F. Supp. 773, 802

(D. Utah 1982). This Court has never endorsed the

phrase, however. See Campbell-Ewald, 577 U.S. at

166–67 (using the term with quotation marks while

holding that a contractor does not acquire the

government’s “embracive” immunity).

The term “immunity,” moreover, covers any

“exemption from a duty, liability, service of process, or

possibility of prosecution.” Black’s Law Dictionary

(12th ed. 2024). This Court has thus used the phrase

“immunity from liability” to describe circumstances

where defendants are entitled to substantive protection from liability for their actions, without suggesting

that they are also immune from suit. See, e.g.,

Washington Metro. Area Transit Auth. v. Johnson, 467

U.S. 925, 927 (1984); Gertz v. Robert Welch, Inc., 418

U.S. 323, 341 (1974); Farmers v. WDAY, Inc., 360 U.S.

525, 527 (1959).

Moreover, the context of Brady indicates that the

immunity at issue was protection against liability.

Brady addressed whether the “managing agent” of a

vessel for the United States Maritime Commission

was “non-suable” in tort except to the extent

authorized by the Suits in Admiralty Act against the

government. 317 U.S. at 576–77 & n.1. In concluding

that the agent was suable, the Court explained that,

“when it comes to the utilization of corporate facilities”

by the government, “immunity from suit is not

favored” because it “would result at times in a

substantial dilution of the rights of claimants.” Id. at

580–81. The Court also rejected the argument that “a

contract between [the agent] and [the government]”

12

could produce an “[i]mmunity from suit on a cause of

action which the law creates.” Id. at 583. Then,

addressing Yearsley, which had been decided three

years earlier, the Court reiterated that “government

contractors obtain certain immunity in connection

with work they do pursuant to” a federal contract. Id.

But the Court described the Yearsley “immunity” as

one that ensures that “the contractor [is] not liable” if

the conditions of the defense are satisfied. Id. Nothing

in Brady’s reasoning and outcome suggests that the

Court understood Yearsley to recognize that government contractors derived their defense to liability

from the government’s immunity from suit.

This conclusion is buttressed by Brady’s reliance

on Sloan Shipyards Corp. v. U.S. Shipping Board

Emergency Fleet Corp., 258 U.S. 549 (1922). See

Brady, 317 U.S. at 580, 584. In Sloan Shipyards, the

Court considered the governmental status of the

Emergency Fleet Corporation, which was a

government-controlled corporation created to assist

the war effort during World War I. 258 U.S. at 564.

Throughout the war and afterwards, Congress and the

President delegated “enormous powers” to the

corporation, such that the corporation argued that “it

was so far put in place of the sovereign as to share the

immunity of the sovereign from suit.” Id. at 566. The

Court considered this argument a “very dangerous

departure” from the “general rule” that “any person

within the jurisdiction is always amenable to the law.”

Id. at 566–67. “An instrumentality of government [it]

might be and for the greatest ends, but the agent,

because he is agent, does not cease to be answerable

for his acts.” Id. at 567. Thus, the Court explained,

even though “the United States cannot be sued for a

13

tort, … its immunity does not extend to those that

acted in its name.” Id. at 568.

Although Sloan Shipyards did not address the

defense that the corporation had acted pursuant to the

government’s lawful instructions, its rationale refutes

the suggestion that, by referring to the Yearsley

defense as an “immunity,” Brady transformed that

defense into an immunity akin to the sovereign

immunity of the federal government. See also Hopkins

v. Clemson Agric. Coll. of S.C., 221 U.S. 636, 642–43

(1911) (“[I]mmunity from suit is a high attribute of

sovereignty—a prerogative of the state itself—which

cannot be availed of by public agents when sued for

their own torts.”).

II. The Yearsley defense for government

contractors is distinct from the immunities

of government officials.

This Court has recognized that government

officials may be entitled to immunity from suit for

actions taken in their official roles, and that they may

immediately appeal an order rejecting those

immunity defenses. See, e.g., Nixon v. Fitzgerald, 457

U.S. 731, 742–43 (1982); Mitchell v. Forsyth, 472 U.S.

511, 530 (1985). To the extent that the Court’s official

immunity precedents are relevant here, those cases

confirm that the Yearsley defense is not derived from

sovereign immunity. Those cases do not otherwise

speak directly to the liability of government contractors, especially corporations, or to the right to an

immediate appeal of an order rejecting a Yearsley

defense. Their reasoning and analytical bases,

however, strongly indicate that the Court should

reject calls to analogize Yearsley to the immunity that

14

attaches to the actions taken by individuals appointed

to public office.

A. A federal official may be sued in either an

official capacity or a personal capacity. Lewis v.

Clarke, 581 U.S. 155, 162 (2017). An official-capacity

lawsuit can be viewed as “an action against the entity

of which an officer is an agent,” i.e., an action against

the government itself. Id. (quoting Kentucky v.

Graham, 473 U.S. 159, 165 (1985)). In that circumstance, because the government is the real party in

interest, an official-capacity lawsuit may be barred by

sovereign immunity. Id. Absent a waiver of sovereign

immunity, official-capacity lawsuits against government officials are generally permitted only to restrain

the official from violating a plaintiff’s constitutional or

legal rights; they generally cannot be used to seek

damages against the government. See, e.g., Hafer v.

Melo, 502 U.S. 21, 30 (1991) (citing Ex parte Young,

209 U.S. 123 (1908)); Armstrong v. Exceptional Child

Ctr., Inc., 575 U.S. 320, 326–27 (2015); Larson v.

Domestic & Foreign Commerce Corp., 337 U.S. 682,

689–90 (1949).

A defendant invoking Yearsley as a defense is not

comparable to a government officer defendant sued in

an official capacity. To begin with, a corporate

defendant can never be sued in an official capacity

because corporations cannot be appointed as government officials. Moreover, the Yearsley defense requires the contractor to obey the government’s

instructions. Campbell-Ewald, 577 U.S. at 167–68 &

n.7; Yearsley, 309 U.S. at 20–21. An official capable of

being sued in an official capacity, however, can invoke

sovereign immunity even if the official was the

15

individual giving the instructions. 2 Whether such a

defense would succeed, moreover, would not turn on

whether the defendant was obeying lawful government instructions, but on whether the relief sought

(for example, money damages) would be barred by

sovereign immunity. The conditions of the Yearsley

defense are irrelevant to that question. Thus, despite

being characterized by some courts as based on

“derivative sovereign immunity,” the Yearsley defense

has no relationship to official-capacity suits that

implicate sovereign immunity considerations.

B. Personal-capacity suits against government

officials do not implicate sovereign immunity.

Personal-capacity suits “seek to impose individual

liability upon a government officer for actions taken

under color of … law.” Lewis, 581 U.S. at 162 (quoting

Hafer, 502 U.S. at 25); Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388 (1971). In such suits,

“sovereign immunity ‘does not erect a barrier’”

because the real party in interest is the individual

official, not the government. Id. at 163 (quoting Hafer,

502 U.S. at 30–31).

An official sued in a personal capacity, however,

may “assert personal immunity defenses.” Id. at 163.

Personal defenses include absolute and qualified

immunity. See Graham, 473 U.S. at 166–67. “For

officials whose special functions or constitutional

status requires complete protection from suit,” this

Court has “recognized the defense of ‘absolute

immunity.’” Harlow v. Fitzgerald, 457 U.S. 800, 807

That official need not be a permanent employee; an

individual may be appointed on a temporary or volunteer basis

to carry out the duties of an office. See Filarsky v. Delia, 566 U.S.

377, 384–86 (2012).

2

16

(1982). Officials entitled to absolute immunity include

the President, legislators, judges, prosecutors, and

others performing quasi-judicial functions. Mitchell,

472 U.S. at 520. “For executive officials in general,

however, … qualified immunity represents the norm.”

Harlow, 457 U.S. at 807. Under qualified immunity,

“government officials performing discretionary

functions[] generally are shielded from liability for

civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights

of which a reasonable person would have known.” Id.

at 818.

The Yearsley defense is different in kind from the

defenses of absolute immunity and qualified

immunity available to government officials sued in

their personal capacities. As this Court has explained,

“[a]mong the most persuasive reasons supporting

official immunity is the prospect that damages

liability may render an official cautious in the

discharge of his official duties.” Nixon, 457 U.S. at 752

n.32. Immunity is designed to “shield [officials] from

undue interference with their duties and from the

potentially debilitating threats of liability.” Harlow,

457 U.S. at 806. Thus, “[i]mmunity generally is

available only to officials performing discretionary

functions.” Id. at 816.

While individuals can become government officials

or employees without being hired on a permanent

basis, Filarsky, 566 U.S. at 384–86, a corporate

government contractor is not a federal official and

cannot exercise a discretionary governmental function

on behalf of the Executive Branch. Rather, a

contractor can exercise a governmental function only

with approval by and oversight from a properly

appointed federal officer. See FCC v. Consumers’

17

Research, 145 S. Ct. 2482, 2491 (2025) (“As long as an

agency thus retains decision-making power, it may

enlist private parties to give it recommendations.”);

United States v. Arthrex, Inc., 594 U.S. 1, 16 (2021)

(holding that the Constitution requires the

government to make decisions through “a politically

accountable officer [who] must take responsibility”).

The Yearsley defense honors the constitutional

division between a governmental decisionmaker and a

private entity obeying contractual directives. It was

critical in Yearsley that “the work [was] authorized

and directed by … government officers.” 309 U.S. at

20. Yearsley protects an agent that executes the

government’s “will” by following the lawful instructions of federal officers acting pursuant to Congress’s

“constitutional power,” and it denies protection to an

agent who “exceed[s] his authority” or where his

authority “was not validly conferred.” Id. at 20–21; see

Campbell-Ewald, 577 U.S. at 166 (explaining that the

defense does not apply “[w]hen a contractor violates

both federal law and the Government’s explicit

instructions.”). Thus, far from seeking to protect and

encourage exercises of discretion by the contractor,

the Yearsley defense does exactly the opposite: It

protects only adherence to explicit directions from

government officers. 3 The protection that Yearsley

affords is thus divorced from the immunities that

constitutionally appointed federal officers, or those

working under them, may invoke when sued for

3 In addition to contractors, a subordinate official or govern-

ment employee sued in a personal capacity for following the

lawful instructions of a superior official may be able to invoke a

Yearsley-style defense. See, e.g., Lamar, 92 U.S. at 199.

18

discretionary decisions they make in carrying out

their official duties.

C. Two of this Court’s decisions confirm the

distinct status of corporate contractors compared to

that of government officers and employees.

First, in Boyle, the Court addressed “when a

contractor providing military equipment to the

Federal Government can be held liable under state

tort law for injury caused by a design defect.” 487 U.S.

at 502. The Court recognized that the dispute at issue

was “one between private parties,” not one to which

the government was a party. Id. at 506. Nonetheless,

the Court held that military procurement was “an

area of uniquely federal interest” such that a

“significant conflict” between federal and state law

could preempt state tort law. Id. at 507 (internal

quotation marks omitted). On that point, the Court

recognized that state-law duties that were “not

identical to” but “not contrary to” a procurement

contract did not conflict with federal law, while statelaw duties “precisely contrary to the duty imposed by

the Government contract” did conflict and were

preempted. Id. at 509.

To help determine which contractual requirements

preempted state law, the Court looked to the

discretionary function exception to federal tort

liability in the Federal Tort Claims Act (FTCA). That

exception bars claims against the government arising

from “the exercise or performance or the failure to

exercise or perform a discretionary function or duty on

the part of a federal agency or an employee of the

Government.” Id. at 511 (quoting 28 U.S.C. § 2680(a)).

The Court concluded that state law was preempted

“when (1) the United States approved reasonably

19

precise specifications; (2) the equipment conformed to

those specifications; and (3) the supplier warned the

United States about the dangers in the use of the

equipment that were known to the supplier but not to

the United States.” Id. at 512. As the Court explained,

this test ensures that “the design feature in question

was considered by the Government officer, and not

merely by the contractor itself.” Id. at 512 (emphasis

added).

In so holding, the Court did not suggest that the

military contractor entitled to the preemption defense

could directly invoke the FTCA’s discretionary

function exception. Indeed, this Court has made clear

that the actions of government contractors generally

fall outside of the scope of the FTCA. See United States

v. Orleans, 425 U.S. 807, 814 (1976); Logue v. United

States, 412 U.S. 521, 528 (1973)); 28 U.S.C. § 2671

(defining “Federal agency” to exclude “any contractor

with the United States”). And although (as in Brady),

the Court described the contractor’s protection from

state tort liability as a kind of “immunity,” see, e.g.,

487 U.S. at 504, 510, the Court did not suggest that

military contractors somehow shared in the qualified

immunity that attaches to government officers who

make discretionary choices. Indeed, the Court’s

preemption test recognized that the interests of

officers and military contractors did not necessarily

align. Id. at 512 (requiring contractor to warn officers

of risks to address “incentive for the manufacturer to

withhold knowledge of risks, since conveying that

knowledge might disrupt the contract but withholding

it would produce no liability”); compare Filarsky, 566

U.S. at 392 (explaining that non-permanent government officials entitled to qualified immunity are

“individuals working for the government in pursuit of

20

government objectives”). Accordingly, Boyle was not

concerned about state tort suits that called into

question the reasonableness of contractors’ judgments, but held that preemption of state law was

needed to prevent courts from “second-guessing”

discretionary judgments made by federal officials. Id.

at 510 (internal quotation marks omitted).

Second, Richardson v. McKnight, 521 U.S. 399

(1997), drives home the distinction between government officials and corporate contractors. In an earlier

case, Procunier v. Navarette, 434 U.S. 555 (1978), this

Court had extended qualified immunity to stateemployed prison guards. Id. at 405. In Richardson, the

Court held that prison guards employed by private

prisons did not possess the same immunity. Id. at 401.

After finding no “historical tradition of immunity” for

private prisons, id. at 404–07, the Court looked to the

purpose of immunity doctrine and concluded that

granting immunity to private prison contractors did

not advance the purpose of protecting public officials

from being deterred from exercising their authority,

id. at 408–09. The Court also noted that private

contractors were more likely to be disciplined by

“marketplace pressures.” Id. at 409. And although the

Court acknowledged that litigation may “distract”

prison guards “from their duties” to some extent, it

rejected the idea that “the risk of ‘distraction’ alone

[can] be sufficient grounds for an immunity.” Id. at

411 (cleaned up). Anticipating Filarsky, Richardson

also explained that its decision regarding private, forprofit prison firms did not address the case of “a

private individual briefly associated with a government body, serving as an adjunct to government in an

essential governmental activity, or acting under close

official supervision.” Id. at 413; see Filarsky, 566 U.S.

21

at 393 (distinguishing Richardson). In short, Richardson makes clear that government contractors occupy a

legal status that is distinct from that of government

officials and are not necessarily entitled to the same

immunities that officials can invoke.

The upshot is that this Court’s precedents on the

immunities that can be invoked by individuals who

are government officers are separate and apart from

the Yearsley defense, including the question whether

a court’s rejection of the defense may be immediately

appealed. Yearsley is not designed to protect government decisionmaking “whether or not [the official]

acted wrongly.” Richardson, 521 U.S. at 403. Instead,

the Yearsley defense ensures that a “contractor’s

performance in compliance with all federal directions,” Campbell-Ewald, 577 U.S. at 167 n.7, is not

treated as wrongful when those directions were

lawful. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

338, 366–67 (2011) (noting that an employer can

demonstrate that an employment action is lawful

through an affirmative defense). Yearsley’s protection

from liability extends to individual and corporate

contractors alike, but it has no connection to the

immunities afforded to government officials. And for

the reasons stated above, the Yearsley defense does

not “derive” from the sovereign’s immunity from suit

in federal courts—a point that this Court should

clarify for the benefit of the lower courts.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

22

Respectfully submitted,

NANDAN M. JOSHI

Counsel of Record

SCOTT L. NELSON

ALLISON M. ZIEVE

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

njoshi@citizen.org

Attorneys for Amicus

Curiae Public Citizen

September 2025