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

Supreme Court briefSep 22, 2025

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No. 24-758

In the

Supreme Court of the United States

THE GEO GROUP, INC.,

Petitioner,

ALEJANDRO MENOCAL, et al.,

Respondents.

On Writ Of CertiOrari tO the United StateS

COUrt Of a ppealS fOr the tenth CirCUit

BRIEF OF AMICUS CURIAE

AMERICAN FEDERATION OF STATE,

COUNTY AND MUNICIPAL

EMPLOYEES IN SUPPORT OF

RESPONDENTS

Georgina Yeomans

Counsel of Record

Teague Paterson

Matthew Stark Blumin

American Federation of

State, County and

Municipal Employees

1625 L Street, NW

Washington D.C. 20036

(202) 775-5900

gyeomans@afscme.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

INTERESTS OF AMICUS CURIAE .......................... 1

SUMMARY OF ARGUMENT .................................... 5

ARGUMENT ............................................................... 8

GEO Group’s Suggestion that it Enjoys

Qualified Immunity is Incorrect ................ 8

II.

Adopting GEO Group’s Claimed Immunity

Would Unduly Impede Accountability ..... 22

III.

Granting GEO Group the Extensive

Protections It Seeks Would Hurt Working

People ........................................................ 25

CONCLUSION.......................................................... 30

TABLE OF AUTHORITIES

Cases

Anderson v. Creighton,

483 U.S. 635 (1987) ............................................... 14

Bivens v. Six Unknown Federal Narcotics Agents,

403 U.S. 388 (1971) ............................................... 23

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) ............................................... 20

Brady v. Roosevelt S.S. Co.,

317 U.S. 575 (1943). .......................................... 9, 20

Campbell-Ewald v. Gomez,

577 U.S. 153 (2016) ............................................... 20

Carlson v. Green,

446 U.S. 14 (1980) ................................................. 23

Digital Equip. Corp. v. Desktop Direct, Inc.,

511 U.S. 863 (1994) ................................................. 8

Douglas v. United States,

814 F.3d 1268 (11th Cir. 2016) ............................. 23

Ex parte Young,

209 U.S. 123 (1908) ............................................... 24

iii

Filarsky v. Delia,

566 U.S. 377 (2012) ................................... 16, 17, 18

Flanagan v. United States,

465 U.S. 259 (1984) ................................................. 8

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ......................... 6, 11, 14, 15, 20

Johnson v. Jones,

515 U.S. 304 (1995) ................................................. 9

Manhattan Cmty. Access Corp. v. Halleck,

587 U.S. 802 (2019) ............................................... 16

Mitchell v. Forsyth,

472 U.S. 511 (1985) ..................................... 9, 15, 20

Pierson v. Ray,

386 U.S. 547 (1967) ............................................... 13

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc., 506 U.S. 139 (1993)……………………..8

Richardson v. McKnight,

521 U.S. 399 (1997)……… ........ 6, 11, 13, 16, 18, 19

Richmond v. Scibana,

387 F.3d 602 (7th Cir. 2004) ................................. 24

Scheuer v. Rhodes,

416 U.S. 232 (1974) ............................................... 13

Van Cauwenberghe v. Biard,

486 U.S. 517 (1988) ................................................. 9

Will v. Hallock,

546 U.S. 345 (2006) ................................................. 8

Wood v. Strickland,

420 U.S. 308 (1975) ............................................... 14

Wyatt v. Cole,

504 U.S. 158 (1992) ................................... 15, 16, 21

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

309 U.S. 18 (1940) ......... 5, 9, 7, 9, 10, 11, 19, 20, 30

Statutes

5 U.S.C. § 706(2)(B) .................................................. 22

28 U.S.C. § 2674 ........................................................ 22

42 U.S.C. § 1983 ........................................................ 23

Other Authorities

AFSCME, Resolution No. 8, Continuing the Fight

Against Privatization, in Resolutions Adopted at

the 35th International Convention (2002) ............. 2

Privatization—

Government for Sale, in Resolutions Adopted at the

37th International Convention (2006).................... 3

AFSCME,

Resolution

No.

39,

AFSCME, Resolution No. 44, Opposing Prison

Privatization, in Resolutions Adopted at the 33rd

International Convention (1998) ............................ 1

AFSCME, Resolution No. 51, Fighting Privatization

of Government Services, in Resolutions Adopted at

the 38th International Convention (2008) ............. 3

AFSCME, Resolution No. 89, Opposing Prison

Privatization, in Resolutions Adopted at the 34th

International Convention (2000) ............................ 2

AFSCME, Resolution No. 107, Opposing Private

Prisons and Budget Cuts, in Resolutions Adopted at

the 36th International Convention (2004) ............. 2

Grant Duwe & Valerie Clark, The Effects of Private

Prison Confinement on Offender Recidivism:

Evidence from Minnesota,

38 Crim. Just. Rev. 375.. ……………………………28

Houston Public Employees Protect City Water by

Defeating Privatization Proposal, AFSCME (Mar.

7, 2024) .................................................................... 4

Massachusetts Custodians Mobilize to Defeat

Privatization Effort, AFSCME (May 6, 2024) ........ 4

Massachusetts Members Beat Privatization Push,

Save Nearly 100 Jobs,

AFSCME (Apr. 14, 2025) ........................................ 4

“No Room for Profit”: Corrections Officers, Staff Take

a Stand Against Privatization, AFSCME (Mar. 4,

2025) ........................................................................ 4

Suzanne M. Kirchhoff, Cong. Research Serv.,

Economic Impacts of Prison Growth (Apr. 13,

2010) ...................................................................... 25

The GEO Group, The GEO Group Reports Second

Quarter 2025 Results and Announces $300 Million

Stock Repurchase Program (Aug. 16, 2025)......... 29

U.S. Dep’t of Justice, Office of the Inspector Gen.,

Review of the Federal Bureau of Prisons’

Monitoring of Contracts Prisons (Aug. 2016)....... 28

INTERESTS OF AMICUS CURIAE 1

Amicus Curiae American Federation of State,

County and Municipal Employees (“AFSCME”) is a

labor organization of approximately 1.4 million

members serving the public in the United States. The

vast majority of AFSCME members work in the public

sector for state and local government employers in all

manner of professions necessary to the provision of

essential public services. Some 90,000 AFSCME

members work in law enforcement, including as

corrections officers and corrections staff. AFSCME

also represents approximately 10,000 employees who

work for the federal government.

AFSCME has a long history of opposing

privatization of public services—including prison

privatization 2—because it is not an effective means of

1 No counsel for a party authored this brief in whole or in part,

and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amicus curiae or its counsel made a monetary

contribution to its preparation or submission.

Opposing Prison Privatization, in

Resolutions Adopted at the 33rd International Convention

2 AFSCME, Resolution No. 44,

(1998),

delivering public services and because it often

replaces

dignified

careers

with

low-wage

jobs

overseen by employers with little to no ties to the

affected communities. 3

The public has a right “to expect honest,

efficient public service workers, who are responsive to

citizens’ needs and provide services fairly, without

https://www.afscme.org/about/governance/conventions/resolutio

nsamendments/1998/resolutions/44-opposing-prison-

privatization; AFSCME, Resolution No. 89, Opposing Prison

Privatization, in Resolutions Adopted at the 34th International

Convention

(2000),

https://www.afscme.org/about/governance/conventions/resolutio

nsamendments/2000/resolutions/89-opposing-prison-

privatization; AFSCME, Resolution No. 107, Opposing Private

Prisons and Budget Cuts, in Resolutions Adopted at the 36th

International

Convention

(2004),

https://www.afscme.org/about/governance/conventions/resolutio

nsamendments/2004/resolutions/opposing-private-prisons-andbudget-cuts.

AFSCME, Resolution No. 8, Continuing the Fight Against

Privatization, in Resolutions Adopted at the 35th International

Convention

(2002),

https://www.afscme.org/about/governance/conventions/resolutio

nsamendments/2002/resolutions/8-continuing-the-fight-againstprivatization.

regard to profits, political goals, or personal gain.” 4

Insulating private government contractors from

liability to those they have harmed will only erode

accountability and will contribute no incentive to

provide quality public services.

Privatization also harms communities by

replacing “jobs with fair wages and benefits with jobs

of lower pay and diminished benefits.” 5 AFSCME

members’ jobs are governed by union-negotiated

contracts guaranteeing the members fair wages,

health care, and safe working conditions. The

privatization

government

services

threatens

AFSCME bargaining unit jobs, and their attendant

4AFSCME,

Resolution No. 51, Fighting Privatization of

Government Services, in Resolutions Adopted at the 38th

International

Convention

(2008),

https://www.afscme.org/about/governance/conventions/resoluti

ons-amendments/2008/resolutions/fighting-privatizationofgovernment-services.

5AFSCME,

Resolution No. 39, Privatization—Government for

Sale, in Resolutions Adopted at the 37th International

Convention

(2006),

https://www.afscme.org/about/governance/conventions/resolutio

nsamendments/2006/resolutions/privatization-government-forsale.

fair-workplace

guarantees,

across

sectors,

from

corrections, 6 to custodial services, 7 to school food

service, 8 to public water treatment. 9

Accordingly,

interest

AFSCME

ensuring

that

has

private

significant

government

contractors are held to account for their violations of

the law, whether those violations be in the form of

mistreatment of their wards, as alleged in this case,

the mistreatment of their employees, or the failure to

provide quality services to the community.

“No Room for Profit”: Corrections Officers, Staff Take a Stand

Against

Privatization,

AFSCME

(Mar.

2025),

https://www.afscme.org/blog/no-room-for-profit-correctionsofficers-staff-take-a-stand-against- privatization.

Massachusetts Custodians Mobilize to Defeat Privatization

Effort,

AFSCME

(May

2024),

https://www.afscme.org/blog/massachusetts-custodiansmobilize-to-defeat-privatization-effort.

Massachusetts Members Beat Privatization Push, Save Nearly

100

Jobs,

AFSCME

(Apr.

14,

2025),

https://www.afscme.org/blog/massachusettsmembersbeatprivati

zationpushsavenearly100jobs.

Houston Public Employees Protect City Water by Defeating

Privatization

Proposal,

AFSCME

(Mar.

2024),

https://www.afscme.org/blog/houston-publicemployeesprotectcity water-by-defeating-privatization-proposal.

SUMMARY OF ARGUMENT

GEO Group’s argument that the Tenth Circuit

had jurisdiction over its interlocutory appeal rests on

the premise that Yearsley v. W.A. Ross Construction

Co., 309 U.S. 18 (1940), and like cases confer on it an

immunity from suit, rather than a mere defense to

liability. See Pet’r Br. 15-25. That premise appears to

rest in turn on GEO Group’s presumption that a

contractor steps into the government’s shoes when

performing a function that the government sometimes

performs itself but has decided to contract out to a

private party. Specifically, GEO Group’s brief relies

largely on its contention that private contractors are

entitled to qualified immunity, or something closely

approaching qualified immunity, because contractors

implicate the same concerns that motivated this

Court to create and refine that doctrine for

government actors.

But there are at least two fundamental flaws

with that analogy. First, this Court has already held

the concerns that led it to formulate the modern

qualified immunity standard do not extend to

companies like GEO Group or their employees. This

Court crafted the modern qualified immunity doctrine

in Harlow v. Fitzgerald, 457 U.S. 800 (1982), to

account

for

concerns

specific

government

employees—namely, that government employees not

be overly timid in the exercise of their discretionary

functions, that they not be distracted in the

performance of such duties, and that talented

candidates not be deterred from public employment

for fear of incurring personal liability. Such concerns

do not extend to private, for-profit companies or their

employees,

including

the

private

detention

industry, as this Court held in Richardson v.

McKnight, 521 U.S. 399 (1997). Private contractors

need not fear that their employees will be overly timid

in performing their jobs because market forces should

disincentivize such behavior. Private companies can

insure and indemnify employees and can adjust

employee pay and benefits to account for any effects

that potential liability has on recruitment or

retention. And any risk of distraction from performing

important governmental work posed by civil litigation

cannot alone justify immunizing private contractors

and their employees from suit. Id. at 408-12.

Second, Yearsley and qualified immunity are

distinct in scope and purpose. Qualified immunity

creates a protective sphere within which public

employees exercise their discretionary duties and face

liability only when they violate law that is clearly

established. By contrast, Yearsley is meant to protect

contractors from liability only when and only because

they are following the government’s directives. They

are different doctrines and the considerations and

reach that attend one do not automatically apply to

the other.

In addition to the fact that GEO Group’s

argument rests on multiple faulty doctrinal premises

that cannot withstand scrutiny, the practical effects

of a decision adopting GEO Group’s inapt analogy

would be harmful as well. First, its requested relief

would insulate private contractors like GEO Group

from liability even in situations where the federal

government itself is subject to suit. The Court should

not incentivize the contracting out of detention

services. Second, such a ruling would negatively

impact the national workforce, as data from the

Department of Labor shows that private government

contractors

under-compensate

their

employees

compared to government employers, despite their

significant profits. The net result would serve to

increase GEO Group’s profits by shielding them from

bearing the costs of violations of their legal duties.

GEO Group provides no justification for such a

contortion of the law with such wide-ranging negative

impacts.

ARGUMENT

GEO Group’s Suggestion that it Enjoys

Qualified Immunity is Incorrect

The collateral order doctrine provides for

appellate jurisdiction over a small category of

interlocutory orders. See Digital Equip. Corp. v.

Desktop Direct, Inc., 511 U.S. 863, 867-68 (1994). To

be treated as collateral, an interlocutory order must,

“at a minimum,” “[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.” Flanagan v. United States, 465 U.S. 259,

265 (1984); Will v. Hallock, 546 U.S. 345, 349 (2006)

(quoting Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)).

Although not entirely conclusive, a “critical question”

under the collateral order doctrine “is whether ‘the

essence’ of the claimed right is a right not to stand

trial.” Van Cauwenberghe v. Biard, 486 U.S. 517, 524

(1988) (quoting Mitchell v. Forsyth, 472 U.S. 511, 525

(1985)); see also Johnson v. Jones, 515 U.S. 304, 313

(1995) (denying interlocutory qualified immunity

appeal of fact-bound dispute).

Yearsley, whether considered an immunity

from suit or a defense to liability, is a narrow doctrine,

shielding the contractor only when the government

has “validly conferred” authority to carry out a

specific project, and when the contractor has acted

within the authority granted to it by the relevant

government contract. Yearsley v. W.A. Ross Constr.

Co., 309 U.S. 18, 20-21 (1940). When a contractor

exceeds its delegated authority, including by acting

negligently, or when such authority was not validly

conferred, Yearsley does not shield the contractor. Id.

at 21; see also Brady v. Roosevelt S.S. Co., 317 U.S.

575, 430 (1943). Yearsley serves to assure government

contractors that they will not be held liable for

executing

the

governmental

government’s

immunities,

will,

Yearsley

but

unlike

does

not

immunize discretionary conduct that falls outside the

circumscribed bounds of governmental directives.

In attempting to establish that Yearsley is an

immunity from suit warranting collateral review,

however, GEO Group journeys far outside the bounds

of Yearsley, suggesting that contractors like GEO

Group

are

instead

entitled

step

into

the

government’s shoes when acting at its behest. GEO

Group nods briefly, over the course of two paragraphs,

to Yearsley’s narrow protections. Pet’r Br. at 24. But

the balance of its argument that Yearsley is an

immunity eligible for collateral review rests on the

assumption that government contractors are entitled

to qualified immunity. See id. at 14, 27, 29-31. GEO

Group’s amici, too, rely on analogy to qualified

immunity. See Br. of Amicus Curiae Nevada Hosp.

Ass’n at 10-12; Br. of Amicus Curiae Chamber of

Comm. at 7-9, 21.

There are two flaws with GEO Group’s reliance

on qualified immunity. First, this Court has already

declined to extend qualified immunity to employees of

private, for-profit prison contractors based on its

conclusion that such employees are not similarly

situated to public employees. And second, qualified

immunity and Yearsley are distinct doctrines,

animated by different concerns, with distinct scopes

tailored to effectuating their unique purposes. GEO

Group does not explain why qualified immunity is

relevant to the Yearsley collateral-review analysis.

1. This Court has already held that private, forprofit contractors and their employees are not

sufficiently similarly situated to public employees and

therefore

cannot

invoke

qualified

immunity’s

protection.

Individual

government

actors

faced

with

allegations that their conduct has violated an

individual’s

Constitutional

rights

may

assert

qualified immunity. See Harlow v. Fitzgerald, 457

U.S. 800, 819 (1982) (defining modern qualified-

immunity test). In Richardson v. McKnight, 521 U.S.

399 (1997), however, this Court held that, unlike

publicly

employed

corrections

officers,

guards

working for for-profit prison contractors do not enjoy

qualified immunity. In the Court’s view, neither

history nor purpose justified extending the doctrine

that far. First, “[h]istory does not reveal a ‘firmly

rooted’ tradition of immunity applicable to privately

employed prison guards.” Id. at 404. Indeed, state

governments had contracted prison management to

private parties throughout the nation’s history, but

those private contractors were routinely held to

account for their charge’s injuries. Id. at 405-06

(collecting cases).

Turning to purpose, this Court rejected the

argument that simply performing the same work as

state corrections officers would entitle privately

employed guards to a similar immunity. Id. at 408-09

(noting the Court “never has held that the mere

performance of a governmental function could make

the difference between unlimited § 1983 liability and

qualified

immunity”).

“[I]mportant

differences”

between private and public actors precluded such a

holding. Id. at 409. Unlike publicly employed

corrections officers, there was no comparable danger

that employees of private prison companies would be

overly timid in performing their duties, as market

pressures,

passed

down to

employees through

employment-related rewards and penalties, would

mitigate potential timidity. Id. at 409-10. Talented

applicants would not be unduly deterred from

working for private prison companies for fear of

personal liability, given private firms’ comprehensive

insurance coverage and concomitant likelihood of

employee-indemnification guarantees. Id. at 411. And

private firms can adjust pay and benefits to “offset

any increased employee liability risk.” Id. Finally, any

risk of distraction that litigation might pose could not

alone

justify

extending

qualified

immunity

employees of such for-profit government contractors.

Id. at 411-12.

Importantly,

the

considerations

that

the

Richardson majority relied upon are not stray

considerations. Instead, they are foundational to the

modern qualified immunity doctrine. Originally,

qualified immunity comprised both a subjective and

an objective component. It protected government

actors who performed their duties in “good faith.”

Pierson v. Ray, 386 U.S. 547, 555 (1967). If the official

had a reasonable and good faith belief that their

conduct was lawful, they could benefit from the

affirmative defense. Scheuer v. Rhodes, 416 U.S. 232

(1974). By contrast, an officer had no right to qualified

immunity where “he knew or reasonably should have

known that the action he took within his sphere of

official responsibility would violate . . . constitutional”

or statutory rights. Wood v. Strickland, 420 U.S. 308,

322 (1975).

1982,

however,

the

Supreme

Court

“completely reformulated qualified immunity along

principles not at all embodied in the common law,”

eradicating the subjective component of qualified

immunity in favor of an objective analysis. Anderson

v. Creighton, 483 U.S. 635, 645 (1987). In Harlow, the

Court

determined

that

qualified

immunity’s

subjective component was overly disruptive of

government functions. 457 U.S. at 816-18. Because a

subjective good-faith analysis often entails probing an

official’s “experiences, values, and emotions,” it

almost always requires a case to proceed past

summary judgment, to discovery and often trial. Id. at

816. And, the Court said, such proceedings exacted too

high

cost

government

function—namely,

“distraction of officials from their governmental

duties,

inhibition

discretionary

action,

and

deterrence of able people from public service.” Id.

Accordingly, the Court reformulated the qualified

immunity inquiry to ask only objective questions:

whether the official violated a constitutional or

statutory right, and whether that right was clearly

established at the time the official acted. Id. at 818.

Shortly after Harlow, the Court held that

denials of qualified immunity are immediately

appealable, even in the absence of a final judgment.

See Mitchell v. Forsyth, 472 U.S. 511 (1985). In

declaring the denial of qualified immunity an

immediately appealable order, the Court relied again

on the Harlow considerations—avoiding “distraction

of officials from their governmental duties, inhibition

of discretionary action, and deterrence of able people

from public service” through the quick resolution of

unmeritorious suits. Id. at 526 (quoting Harlow, 457

U.S. at 816). Both Harlow and Mitchell aimed to mold

qualified

immunity

into

issue

that

could

theoretically be decided as a matter of law, and

relatively quickly, striking “a balance between

compensating those who have been injured by official

conduct and protecting government's ability to

perform its traditional functions.” Wyatt v. Cole, 504

U.S. 158, 167 (1992).

The

modern

formulation

qualified

immunity—both its substantive protections and its

immediate appealability—does not extend to private

actors, even in the limited circumstances where their

conduct constitutes state action. See id. at 159;

Manhattan Cmty. Access Corp. v. Halleck, 587 U.S.

802,

808

(2019)

(describing

extremely

limited

circumstances in which private party will be

considered state actor and therefore accountable to

the Constitution). That is because, as in Richardson,

“the special policy concerns involved in suing

government officials . . . are not applicable to private

parties.” Wyatt, 504 U.S at 167-68; see also

Richardson, 521 U.S. at 408-412.

The

Court

reiterated this distinction

Filarsky v. Delia, 566 U.S. 377 (2012), on which GEO

Group relies, but which has no applicability to

operations of a private, for-profit company like GEO

Group. In Filarsky, the city of Rialto, California, hired

a local employment lawyer, Steve Filarsky, to assist

with its investigation of a city firefighter suspected of

abusing his sick leave. 566 U.S. at 380-81. During the

investigation, Filarsky and city employees allegedly

violated the firefighter’s constitutional rights. The

firefighter

sued

and

all

individual

defendants

asserted, and were granted, qualified immunity. The

Ninth Circuit reversed as to Filarsky, holding that he

was not entitled to qualified immunity because he was

not a city employee. Id. at 382-83.

The Supreme Court disagreed, holding that

Filarsky, by virtue of his temporary government

position, was entitled to assert qualified immunity. Id.

at 388-89. The Court rested its conclusion on

historical considerations and practical concerns. As to

history, the Court explained that, in 1871, when 42

U.S.C. § 1983 was passed, it was not unusual for

individuals to hold dual appointments as part-time

public servants and part-time private employees. Id.

at 384-85. Accordingly, “[t]he protections provided by

the common law did not turn on whether someone we

today would call a police officer worked for the

government full time or instead for both public and

private employers.” Id. at 387-88.

The Court went on to hold that Filarsky also

satisfied the practical considerations that inform the

Court’s

qualified

immunity

doctrine.

Namely,

subjecting individuals who work for the government

on an ad-hoc or part-time basis to full liability for

their actions would result in “unwarranted timidity”

in the performance of the governmental duties, would

hinder the government’s recruitment abilities, and

would distract such individuals from their work. Id. at

389-91.

The Court was careful to distinguish employees

of private, for-profit contractors, as in Richardson,

from the context of a private individual hired directly

by the government on a part-time basis to perform a

governmental task under its supervision, as in

Filarsky. See id. at 393; see also Richardson, 521 U.S.

at 407, 413. Filarsky, “an individual hired by the

government . . . on something other than a permanent

or full-time basis,” gave rise to entirely different

considerations than an employee backed by a “large,

multistate

private

prison

management

firm”

responsive to market pressures. 566 U.S. at 380 (first

quotation); 521 U.S. at 409-410 (second quotation).

Moreover, although there was a common law tradition

of providing a kind of immunity to individuals who

“performed services at the behest of the sovereign,”

there was no basis to extend immunity “to private

individuals working for profit.” Richardson, 521 U.S.

at 407.

GEO Group clearly falls on the Richardson side

of this dividing line, as it is itself a large, multi-state

private

prison

management

firm

that

profits

tremendously from its government contracts. 10

2. Moreover, qualified immunity and Yearsley

are not similar doctrines, despite GEO Group’s

insistence otherwise. Qualified immunity creates a

liability buffer for government actors who exercise

their discretion in ways that may violate the law, but

where the reasons the conduct is unlawful remain asyet undefined. Yearsley, by contrast, creates no such

buffer for ultra vires conduct: It shields a contractor

only when the government has “validly conferred”

authority to carry out a specific project, and when the

contractor has acted within the authority granted to

it by the relevant government contract. Yearsley, 309

U.S. at 20-21.

The GEO Group, The GEO Group Reports Second Quarter

2025 Results and Announces Million Stock Repurchase Program

(Aug.

16,

2025),

https://investors.geogroup.com/news-

releases/news-release-details/geo-group-reports-second-quarter2025-results-and-announces-300.

Qualified

immunity

protects

government

officials only when two important criteria are met: the

government

actor

“performing

discretionary

functions” and the allegedly violated right at issue is

not “clearly established.” Harlow, 457 U.S. at 816,

818. Each element is necessary to justify the fact that

qualified immunity sometimes shields government

actors from liability even when they are acting

unlawfully. See Mitchell, 472 U.S. at 525-26.

contrast,

Yearsley

protects

federal

contractors only when they act within the bounds of

authority lawfully conferred upon them by the

government through contract, not when they are

exercising their own discretion and not when they

step outside the bounds of their delegated authority.

See Yearsley, 309 U.S. at 21. Yearsley’s protection is

lost the moment a contractor steps outside the

government’s control and exceeds the authority

delegated to it. See Campbell-Ewald v. Gomez, 577

U.S. 153, 166-67 (2016) (discussing Yearsley, 309 U.S.

at 21); Brady, 317 U.S. at 430 (Yearsley would not

shield

contractor

who

exercised

delegated

governmental duties negligently); Boyle v. United

Techs. Corp., 487 U.S. 500, 525 (1988) (Brennan, J.,

dissenting) (“Yearsley. . . has never been read to

immunize the discretionary acts of those who perform

service contracts for the Government.”).

The difference in scope between the two

doctrines

tracks

each

implicated

party’s

accountability and motivations. Public employees,

who generally take an oath to follow and defend the

law when assuming office, are “principally concerned

with enhancing the public good,” and are accountable

to the public either directly, if they are elected

officials, or through their politically accountable

supervisors and employing agencies. Wyatt, 504 U.S.

at 168. By contrast, private, for-profit contractors

“hold no office requiring them to exercise discretion,”

id., and are not “principally concerned with enhancing

the public good,” id., but instead have a profit motive.

There is no policy interest in allowing government

contractors leeway to operate outside the bounds of

their contract without fear of liability.

In short, the two doctrines are different in

scope and purpose: one provides a buffer to public

employees in which to exercise their discretion to

protect against unwarranted timidity by government

officials; the other provides a strictly defined defense

to those who work to carry out the government’s

specified instructions to ensure that those who act

according to the government’s specifications do not

incur liability for doing so. GEO Group’s attempts to

call upon qualified immunity and the concerns

animating both that doctrine’s modern formulation

and its immediate appealability are misguided and

incorrect.

II.

Adopting

GEO

Group’s

Claimed

Immunity

Would

Unduly

Impede

Accountability

Adopting

GEO

Group’s

premise

that

government contractors are entitled to qualified

immunity

would

unduly

impede

government

contractors’ accountability, and would arguably

elevate GEO Group above the federal government

itself, insulating GEO Group from suit where even the

federal government could be held accountable in

court.

GEO Group argues that, “[i]f ICE employees

directly

operated

the

AIPC,

Respondents

unquestionably could not have stated a claim against

the federal government.” Pet’r Br. at 49. That is far

from unquestionably true, however.

Government

violations

actors

federal

are

accountable

rights

through

for

various

mechanisms, including, for federal officials, actions

pursuant to Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388 (1971). See Carlson v. Green,

446 U.S. 14, 23 (1980) (recognizing a Bivens action

against

federal

prison

officials).

The

federal

government has also waived its sovereign immunity

through

various

individuals,

statutes,

including

allowing

federal

harmed

detainees

and

prisoners, to sue the government directly for violation

of constitutional and other rights. For instance,

Congress has waived sovereign immunity by way of

the Federal Tort Claims Act, under which federal

detainees can challenge the unlawful withholding of

their wages. See Federal Tort Claims Act, 28 U.S.C.

§ 2674; see also Douglas v. United States, 814 F.3d

1268, 1276 (11th Cir. 2016) (failure to pay wages fell

outside FTCA’s discretionary function exception).

Congress has also waived its sovereign immunity

through the Administrative Procedure Act, which is

available to federal detainees to challenge agency

rules that adversely affect them. See 5 U.S.C.

§ 706(2)(B) (directing courts to “set aside [unlawful]

agency action”); Richmond v. Scibana, 387 F.3d 602,

605 (7th Cir. 2004) (discussing APA challenge as the

appropriate vehicle to challenge agency rule that

would determine plaintiff’s placement within federal

confinement). State and municipal officials are also

accountable to the Constitution through various

causes of action. See 42 U.S.C. § 1983; Ex parte

Young, 209 U.S. 123 (1908).

GEO Group’s claim that it should be “immune

from suit” for its work on behalf of the government

would therefore elevate it above the government

itself, rendering any accountability to individuals

GEO Group and its staff directly harm nearly

impossible. The effects of such a ruling would be

widespread, given the ubiquity of federal government

contracting highlighted by GEO Group and its amici.

Pet’r Br. at 46; Br. of Amicus Curiae Professional

Servs. Council at 6; Br. of Amicus Curiae Chamber of

Comm. at 11.

And rendering private prison

companies like GEO Group immune where the federal

government is not would create a significant, and

highly unnatural, incentive to contract out carceral

services to contractors precisely because the cost of

their services would be artificially lower due to their

unaccountability for illegal acts.

III.

Granting GEO Group the Extensive

Protections

Seeks

Would

Hurt

Working People

Insulating GEO Group and its private for-profit

contracting peers from liability and suit even where

the federal government can be held to account would

incentivize

privatizing

even

government

services, leaving the American worker worse off.

Despite the Supreme Court’s recognition that

private, for-profit contractors—including those who

operate in the corrections sphere like GEO Group—

are well-situated to recruit talented candidates

through competitive pay and benefits, data from the

Bureau of Labor Statistics’ office of Occupational

Employment and Wage Statistics suggests that

employees

private,

for-profit

government

contractors in the corrections industry make an

average of about $25,000 less than their federal peers

annually, and $9,000 less than their state and local

counterparts. 11

See also Suzanne M. Kirchhoff, Cong. Research Serv.,

Economic Impacts of Prison Growth 13, (Apr. 13,

2010) (“Wages are significantly higher for workers in

government-run prisons than for those in facilities

managed by private prison companies.”).

This disparity in compensation extends to

benefits as well. Government contractors across

sectors have less access to health care, sick leave, and

11 The following representative charts were produced in-house at

AFSCME. The underlying data comes from the May 2024

national data published by the U.S. Bureau of Labor Statistics,

https://www.bls.gov/oes/tables.htm.

retirement

comparators.

benefits

than

their

public-servant

And

private

government

contractors—

specifically private prison contractors—have failed

their workers when it comes to workplace safety. For

instance, employees of private prisons are exposed to

more safety and security-related incidents per capita

than employees of the Federal Bureau of Prisons. See

U.S. Dep’t of Justice, Office of the Inspector Gen.,

Review of the Federal Bureau of Prisons’ Monitoring

of Contracts Prisons 14 (Aug. 2016). They have also

failed the community when it comes to safety: Studies

show that private prisons have higher rates of

recidivism than their publicly run peers. 12

The Effects of Private Prison

Confinement on Offender Recidivism: Evidence from Minnesota,

12 Grant Duwe & Valerie Clark,

proliferation

for-profit

government

contractors is objectively bad for the American

worker, as an employee of a private, for-profit

government contractor stands to be paid significantly

less and enjoy less generous benefits and more

dangerous working conditions than public employee

comparators. GEO Group could begin to remediate

this gap by leveraging the net income of $48.6 million

that it reported for just the first six months of 2025. 13

Increasing its employee pay, benefits, and working

conditions could also address GEO Group’s apparent

concern that being required to await final judgment

before appealing the denial of a Yearsley defense

could hamper its ability to recruit “talented and

honest people who could instead pursue other

ventures.” Pet’r Br. at 46. Unless and until it does so,

however, further proliferation of privatization of

Crim.

Just.

Rev.

375,

375-394

(2013),

https://doi.org/10.1177/0734016813478823.

The GEO Group, The GEO Group Reports Second Quarter

2025 Results and Announces $300 Million Stock Repurchase

Program (Aug. 16, 2025), https://investors.geogroup.com/newsreleases/news-release-details/geo-group-reports-second-quarter2025-results-and-announces-300.

government services will objectively harm working

people.

CONCLUSION

GEO Group’s argument that it is entitled to

interlocutory review in Yearsley cases is based on the

unsupported and faulty premise that for-profit

contractors like GEO Group are entitled to qualified

immunity. The Court has already held that is not the

case, and GEO Group does not justify revisiting that

conclusion nor does it explain why the two doctrines

should be conflated to GEO Group’s benefit. The

consequences of adopting GEO Group’s proposed

extension of the law would be to insulate private

contractors from liability in circumstances in which

the federal government itself faces civil liability, thus

unnaturally incentivizing privatization. Siding with

GEO Group in this case would also negatively impact

American workers, who face distinctly worse working

conditions when employed by private, for-profit

government contractors.

Respectfully submitted,

GEORGINA YEOMANS

Counsel of Record

TEAGUE PATERSON

MATTHEW STARK BLUMIN

1625 L Street NW

Washington D.C. 20036

(202) 775-5900

gyeomans@afscme.org

Counsel for Amicus Curiae

September 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.