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 OF RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER, INSTITUTE

FOR JUSTICE, AND THE CATO INSTITUTE AS

AMICI CURIAE IN SUPPORT OF

RESPONDENTS

_______________________

Anya Bidwell

Patrick Jaicomo

INSTITUTE FOR JUSTICE

901 N. Glebe Road

Suite 900

Arlington, VA 20003

(703) 682-9320

abidwell@ij.org

Amit Jain

Counsel of Record

Ellen Noble

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

501 H Street NE, Suite 275

Washington, DC 20002

(202) 869-1664

amit.jain@macarthurjustice.org

Counsel for Amici Curiae

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF THE ARGUMENT ............................ 3

ARGUMENT ............................................................... 4

I. GEO Stretches Cohen Beyond its Breaking

Point. ...................................................................... 4

A. GEO’s unavailing analogy to qualified

immunity only underscores why Cohen does not

apply. ................................................................. 5

B. Extending Cohen as GEO urges would clog the

courts of appeals with quotidian interlocutory

disputes. .......................................................... 13

II. Bureaucrat-Conferred

Immunity-by-Contract

Imperils the Separation of Powers and Threatens

Individual Liberty. ............................................... 17

CONCLUSION .......................................................... 22

(i)

ii

TABLE OF AUTHORITIES

Cases

Page(s)

ACT, Inc. v. Worldwide Interactive Network, Inc.,

46 F.4th 489 (6th Cir. 2022) ............................. 16

The Apollon, 22 U.S. (9 Wheat.) 362 (1824) .......... 19

Brady v. Roosevelt S.S. Co.,

317 U.S. 575 (1943) ........................................... 21

Calliste v. Lor,

No. 23-2158, 2025 WL 1743510 (4th Cir.

June 24, 2025) ..................................................... 9

Calliste v. Lor,

No. 23-2158 (4th Cir. Oct. 22, 2024)

(unpublished order)............................................. 9

Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541 (1949) ............................................. 3

Couch v. Brooks,

No. 21-6185, 2022 WL 2963208 (6th Cir.

July 26, 2022) ...................................................... 9

Dep’t of Transp. v. Ass’n of Am. Railroads,

575 U.S. 43 (2015) ............................................. 22

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

511 U.S. 863 (1994)

.................................................. 5, 8, 10, 12, 15-17

Egbert v. Boule,

596 U.S. 482 (2022) ........................................... 19

iii

Goldey v. Fields,

606 U.S. 942 (2025) ....................................... 4, 18

Gordon v. Nat’l R.R. Passenger Corp.,

No. 10753, 2002 WL 550472 (Del. Ch.

Apr. 5, 2002) ...................................................... 16

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ........................................... 11

Hernández v. Mesa,

589 U.S. 93 (2020) ............................................. 19

Hertz Corp. v. Friend,

559 U.S. 77 (2010) ............................................. 10

Johnson v. Jones,

515 U.S. 304 (1995) ............................ 8-10, 13, 21

Joseph v. Bartlett,

981 F.3d 319 (5th Cir. 2020) ............................... 6

Lalonde v. Delta Field Erection,

No. 96-cv-3244, 1998 WL 34301466

(M.D. La. Aug. 6, 1998) ..................................... 16

Lauro Lines S.r.l. v. Chasser,

490 U.S. 495 (1989) ........................................... 17

McClendon v. City of Albuquerque,

630 F.3d 1288 (10th Cir. 2011) ........................... 5

McDonald v. Flake,

814 F.3d 804 (6th Cir. 2016) ............................... 7

McMellon v. United States,

387 F.3d 329 (4th Cir. 2004) ............................. 20

iv

Melendez v. Sec’y of Dep’t of Corrs.,

No. 23-12424, 2024 WL 3880013 (11th

Cir. Aug. 20, 2024) .............................................. 9

Mitchell v. Forsyth,

472 U.S. 511 (1985) ....................................... 8, 21

Mohawk Industries, Inc. v. Carpenter,

558 U.S. 100 (2009) ....................... 5, 7, 13, 14, 17

Peck v. Montoya,

51 F.4th 877 (9th Cir. 2022) ............................... 9

Reynolds v. Penn Metal Fabricators, Inc.,

550 N.Y.S.2d 811 (Sup. Ct. 1990) ..................... 15

Richardson-Merrell, Inc. v. Koller,

472 U.S. 424 (1985) ....................................... 7, 14

Texas v. Comm’r of Internal Revenue,

142 S. Ct. 1308 (2022) ....................................... 11

Wellness Int’l Network, Ltd. v. Sharif,

575 U.S. 665 (2015) ........................................... 22

Will v. Hallock,

546 U.S. 345 (2006) ...................... 4, 11-13, 16, 17

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

309 U.S. 18 (1940) ............................................... 3

Ziglar v. Abbasi,

582 U.S. 120 (2017) ..................................... 19, 20

Statutes

15 U.S.C. § 37(b) ..................................................... 20

v

28 U.S.C. § 1292(e) ................................................. 17

28 U.S.C. § 2072(c) ................................................. 17

42 U.S.C. § 247d-6d(a)(1), (e)(10) ........................... 20

Other Authorities

Alexander A. Reinert, Does Qualified

Immunity Matter?, 8 U. St. Thomas L.J.

477 (2011) ............................................................ 6

Joanna C. Schwartz, How Qualified

Immunity Fails, 127 Yale L.J. 2 (2017) ............. 6

Karen M. Blum, Qualified Immunity: Time

to Change the Message, 93 Notre Dame

L. Rev. 1887 (2018) ......................................... 8, 9

U.S. Census Bureau, 2020 Population and

Housing State Data (Aug. 12, 2021) ................. 13

U.S. Government Accountability Office, A

Snapshot of Government-Wide

Contracting for FY 2024 (June 24, 2025) ......... 14

USASpending.gov, Advanced Search (last

viewed Sept. 20, 2025) ................................ 14, 15

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 OF RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER, INSTITUTE

FOR JUSTICE, AND THE CATO INSTITUTE AS

AMICI CURIAE IN SUPPORT OF

RESPONDENTS

_______________________

INTEREST OF AMICI CURIAE 1

The Roderick and Solange MacArthur Justice

Center (“RSMJC”) is a public interest law firm

founded in 1985 by the family of J. Roderick

MacArthur to advocate for human rights and social

justice through litigation. Through its Supreme Court

and Appellate Program, RSMJC litigates cases before

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

and no counsel for a party (nor a party itself) made a monetary

contribution intended to fund its preparation or submission. No

person other than amici or their counsel made a monetary

contribution to fund the preparation or submission of this brief.

(1)

2

this Court and appellate courts nationwide in order to

vindicate the civil rights of persons who have been

subjected to mistreatment by the criminal legal

system.

The Institute for Justice (“IJ”) is a nonprofit public

interest law firm committed to defending the essential

foundations of a free society by securing greater

protection for individual liberty. IJ pursues these

goals in part through its Project on Immunity and

Accountability, which seeks to decrease procedural

barriers that insulate defendants from lawsuit over

violations of individual rights. IJ also pursues these

goals through affirmative litigation at all levels on

behalf of individuals whose rights have been violated.

This case concerns RSMJC and IJ because both

organizations regularly litigate issues involving

accountability for such violations of individual

rights—not only by formal government actors, but

also by those who contract with the government.

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Project on

Criminal Justice was founded in 1999 and focuses in

particular on the scope of substantive criminal

liability, the proper and effective role of police in their

communities, the protection of constitutional and

statutory safeguards for criminal suspects and

defendants, citizen participation in the criminal

justice system, and accountability for law enforcement

officers. This case concerns Cato because it reflects the

remarkable extent to which judges have crafted

numerous textually and historically baseless legal

3

doctrines to advantage government officials in

litigation.

Although amici might not agree on every issue, all

have played a key role in civil rights battles in areas

ranging from qualified immunity and conditions of

confinement to property rights and economic liberties.

In addition to RSMJC and IJ’s direct representation

of clients whose rights have been violated, all three

amici frequently file amicus briefs related to these

issues throughout the federal circuits, in state

supreme courts, and in this Court.

SUMMARY OF THE ARGUMENT

GEO’s claimed entitlement to an immediate

interlocutory appeal is based on two false premises:

(1) that Yearsley v. W.A. Ross Construction Co., 309

U.S. 18 (1940), empowered government bureaucrats

to bestow private contractors with “derivative

sovereign immunity,” and (2) that denials of

“derivative sovereign immunity” (if it exists) fit within

the exclusive membership of orders that are

immediately appealable under Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541 (1949). Amici,

cross-ideological

organizations

that

routinely

represent or support individuals seeking to vindicate

their rights and secure accountability, write from

experience to share additional reasons why GEO’s

supercharged view of Cohen is wrong—and why its

view of Yearsley is just as untenable.

As for Cohen: Although GEO tries mightily to

equate its conception of Yearsley with qualified

immunity, its comparison ignores the many costs of

affording interlocutory appeals of qualified immunity

denials. In the qualified immunity context, the Court

4

has held, those costs are justified by the need to

induce government officials to show reasonable

initiative where the law is unclear. But no such

justification applies here, and GEO’s position would

improperly invite countless run-of-the-mill disputes

into Cohen’s “narrow and selective” club. Will v.

Hallock, 546 U.S. 345, 350 (2006).

As for Yearsley: In asserting that “derivative

sovereign immunity” would somehow protect the

separation of powers, GEO again gets matters

backwards. Under this Court’s reasoning in several

recent cases, “‘separation-of-powers principles’ . . .

counsel against recognizing an implied” immunity

from suit. Goldey v. Fields, 606 U.S. 942, 944 (2025)

(per curiam) (quoting Ziglar v. Abbasi, 582 U.S. 120,

135, 148-49 (2017)) (emphasis added). It is GEO’s

request to circumvent a legal obligation enacted by

Congress, based on a theory of immunity-by-contract,

that imperils the separation of powers. That, in turn,

threatens the values of liberty and accountability that

the separation of powers protects.

ARGUMENT

I.

GEO Stretches Cohen Beyond its Breaking

Point.

The Tenth Circuit rightly refused to extend the

narrow and selective class of collaterally appealable

orders to encompass GEO’s assertion of so-called

“derivative sovereign immunity.” Even assuming that

such a thing exists—it does not, see infra Part II—

GEO cannot satisfy any one of the Cohen doctrine’s

three strict requirements. See Resp. Br. 31-48.

Drawing on their litigation and advocacy

experience, amici write to expound on two additional

5

defects in GEO’s attempt to extend Cohen. First, GEO

tries to analogize its Yearsley defense to qualified

immunity, but a proper comparison of the two

doctrines is fatal to GEO’s position. GEO’s account

ignores the substantial costs interlocutory appeals

impose and the unique reasons this Court has deemed

those costs warranted in the qualified immunity

context—reasons that do not apply here. Second,

GEO’s conception of Cohen would “swallow the

general rule that a party is entitled to a single

appeal,” flooding the courts of appeals with fact-bound

interlocutory disputes arising out of everyday

trespasses, personal injuries, and more. Mohawk

Industries, Inc. v. Carpenter, 558 U.S. 100, 106 (2009)

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

511 U.S. 863, 868 (1994)).

A.

GEO’s unavailing analogy to qualified

immunity only underscores why Cohen

does not apply.

It’s no surprise that GEO tries to analogize the

district court’s Yearsley decision to a denial of

qualified immunity. After all, qualified immunity

appeals represent the outermost bounds of the Cohen

doctrine, which is otherwise limited to “rights . . .

originating in the Constitution or statutes.” Digital

Equip. Corp., 511 U.S. at 879; accord, e.g., McClendon

v. City of Albuquerque, 630 F.3d 1288, 1295-96 (10th

Cir. 2011) (Gorsuch, J.) (“[T]he only time a claimed

‘right not to stand trial’ will justify immediate

appellate review under Cohen is when a ‘statutory or

constitutional’ provision guarantees that claimed

right.”).

But GEO’s analysis is incomplete. GEO ignores the

costs of interlocutory appeals in the context of

6

qualified immunity, the confusion such appeals have

precipitated, and the specific reasons the Court has

found these challenges justified in the context of

qualified immunity. Because those reasons have no

application here, a proper comparison with qualified

immunity only proves that GEO’s proposed extension

of Cohen is untenable.

Delays. The availability of an interlocutory appeal

allows appellants to force litigants to defeat an

immunity or defense several times over, impeding

accountability and increasing the costs of litigating

meritorious claims. See Joseph v. Bartlett, 981 F.3d

319, 330-31 (5th Cir. 2020) (explaining that

“[a]n official can take multiple immediate appeals

because the official can raise qualified immunity at

any stage in the litigation—from Rule 12(b)(6)

motions to dismiss, to Rule 12(c) motions for judgment

on the pleadings, to Rule 56 motions for summary

judgment, to Rule 50(b) post-verdict motions for

judgment as a matter of law—and continue to raise it

at each successive stage”). In the qualified immunity

context, the burdens attendant to immunity,

including interlocutory appeals, may deter plaintiffs

from ever bringing suit (or even deter counsel from

representing them). See Joanna C. Schwartz, How

Qualified Immunity Fails, 127 Yale L.J. 2, 50 (2017);

see also Alexander A. Reinert, Does Qualified

Immunity Matter?, 8 U. St. Thomas L.J. 477, 492

(2011) (explaining that “the availability of

interlocutory appeal or the likelihood of stays of

discovery during resolution of [a] qualified immunity

defense” was a substantial factor people considered in

deciding whether to pursue claims).

7

Even when suits are filed, defendants can and do

“employ these interlocutory appeals from the denial of

qualified immunity for the sole purpose of delaying

trial, often to the disadvantage of the plaintiff.”

McDonald v. Flake, 814 F.3d 804, 817 (6th Cir. 2016)

(internal quotation marks omitted). “By design, or

merely as a result, defendants may defeat just claims

by making the suit unbearably expensive or

indefinitely putting off the trial.” Id. Amici have

observed parties deploy these tactics time and again,

inflicting “disruption, delay, and expense” and

“undermin[ing] the ability of district judges to

supervise litigation.” Richardson-Merrell, Inc. v.

Koller, 472 U.S. 424, 430 (1985); see also Mohawk

Industries, Inc., 558 U.S. at 106 (“Permitting

piecemeal, prejudgment appeals, we have recognized,

undermines ‘efficient judicial administration’ and

encroaches upon the prerogatives of district court

judges . . . .”) (quoting Firestone Tire & Rubber Co. v.

Risjord, 449 U.S. 368, 374 (1981)).

Look no further than this very lawsuit, where GEO

has delayed proceedings by pursuing multiple stays

and interlocutory appeals. See Pet. App. 6a-9a; Br. in

Opp. 11-12. As a result, this suit—which Respondents

filed nearly eleven years ago, see Pet. App. 6a—has

yet to proceed past summary judgment. GEO’s view

would allow well-resourced government contractors to

emulate this playbook in case after case, deferring

accountability or evading it altogether. “[I]t would be

no consolation that a party’s meritless [Yearsley]

claim was rejected on immediate appeal; the damage

to the efficient and congressionally mandated

allocation of judicial responsibility would be done, and

any improper purpose the appellant might have had

8

in saddling its opponent with cost and delay would be

accomplished.” Digital Equip. Corp., 511 U.S. at 873.

Confusion. Qualified immunity appeals also

illustrate the jurisdictional complexity and confusion

that proliferate when Cohen is stretched to its limits.

In Mitchell v. Forsyth, 472 U.S. 511, 530 (1985),

this Court held that interlocutory appeals were

available from certain orders denying qualified

immunity. But as the Court later explained, “Mitchell

found . . . the ‘separability’ question” under Cohen—

i.e., “whether or not the ‘qualified immunity’ issue was

‘completely separate from the merits of the action’”—

particularly “difficult.” Johnson v. Jones, 515 U.S.

304, 312 (1995). Mitchell thus represented the outer

bounds of the Cohen doctrine: To take even “a small

step beyond Mitchell . . . would more than relax

[Cohen’s] separability requirement—it would in many

cases simply abandon it.” Id. at 315. The Court

therefore has distinguished between qualified

immunity appeals premised on issues of fact and those

premised on issues of law, with only issues of law

being reviewable on an interlocutory basis. See id. at

319-20.

Despite this Court’s guidance, the scope of

appellate jurisdiction over such interlocutory appeals

has remained the subject of significant “confusion and

inconsistency.” Karen M. Blum, Qualified Immunity:

Time to Change the Message, 93 Notre Dame L. Rev.

1887, 1915-16 (2018). For starters, even at a purely

conceptual level, the fact/law divide is not always

straightforward. See Resp. Br. 45 n.9. Can an

appellate court entertain an interlocutory dispute

over whether a reasonable jury could draw the same

inferences from undisputed facts that a district court

9

did? Sometimes yes, sometimes no. See Blum, 93

Notre Dame L. Rev. at 1916 n.184. And where exactly

is the line between “the application of ‘clearly

established’ law to a given . . . set of facts” (reviewable)

and

“a

question

of

‘evidence

sufficiency’”

(unreviewable)? Johnson, 515 U.S. at 313.

“Distinguishing the two has perplexed courts for

years.” Peck v. Montoya, 51 F.4th 877, 885 (9th Cir.

2022) (collecting cases).

In practice, too, parsing out legal disputes from

factual ones is difficult because “the determination of

the legal question of qualified immunity” is “heavily

dependent upon the facts of a particular case.” Blum,

93 Notre Dame L. Rev. at 1916. Because appellate

jurisdiction will often depend on whether the

appellant’s arguments align with or diverge from the

district court’s factual recitation, it may be difficult to

evaluate until after a case is fully briefed. Some of

amici have expended resources briefing both

jurisdiction and the merits in interlocutory appeals of

qualified immunity denials, only to see those appeals

ultimately (and correctly) dismissed for lack of

jurisdiction. 2

Given these lessons from experience, it’s cold

comfort for GEO to argue that “a court need not

2 See, e.g., Order at 2, Calliste v. Lor, No. 23-2158 (4th Cir. Oct.

22, 2024) (denying motion to dismiss interlocutory appeal for

lack of jurisdiction); Calliste v. Lor, No. 23-2158, 2025 WL

1743510, at *4 (4th Cir. June 24, 2025) (after receiving full

merits briefing and hearing oral argument, dismissing same

interlocutory appeal for lack of jurisdiction); Melendez v. Sec’y of

Dep’t of Corrs., No. 23-12424, 2024 WL 3880013, at *7 (11th Cir.

Aug. 20, 2024) (after receiving full merits briefing, dismissing

interlocutory appeal for lack of jurisdiction); Couch v. Brooks, No.

21-6185, 2022 WL 2963208, at *1 (6th Cir. July 26, 2022) (same).

10

consider any disputed facts” to resolve GEO’s asserted

defense in this case. Petr. Br. 38-39. That’s not true;

as Respondents explain, it would be far from

straightforward to excise legal issues from factual

ones in this case. See Resp. Br. 46-47. Nor would it be

straightforward in most other cases involving

Yearsley defenses. See Digital Equip. Corp., 511 U.S.

at 868 (“warn[ing] that the issue of appealability

under § 1291 is to be determined for the entire

category to which a claim belongs”).

If anything, the Yearsley analysis is more factbound than the qualified immunity inquiry; it

requires a court to engage in a granular comparison of

a contractor’s (actual) conduct with the government’s

(actual) directives. See Pet. App. 20a (explaining that

Yearsley’s second prong “wades into the specific

directions that the government gave to the contractor

and whether, by failing to closely adhere to those

instructions, the government contractor engaged in

illegal conduct”). Affording immediate appeals for

denials of this merits-entwined, highly fact-dependent

defense is destined to cause confusion regarding when

such appeals can be taken. That, in turn, will

“encourage gamesmanship, . . . diminish the

likelihood that results and settlements will reflect a

claim’s legal and factual merits,” and waste “[j]udicial

resources.” Hertz Corp. v. Friend, 559 U.S. 77, 94

(2010) (urging “[s]imple jurisdictional rules” over

“[c]omplex jurisdictional tests”).

Justifications. In the context of qualified

immunity, this Court has reasoned that Cohen’s

attendant costs and confusion are worthwhile—if only

in “cases presenting more abstract issues of law.”

Johnson, 515 U.S. at 317. But in the context of

11

Yearsley, the balance tips decidedly in the other

direction. The justifications for extending Cohen to

reach qualified immunity, despite the burdens of

immediate appealability, do not apply to Yearsley for

two reasons.

First, the Court has premised modern qualified

immunity doctrine on “the need to protect officials

who are required to exercise their discretion and the

related public interest in encouraging the vigorous

exercise of official authority.” Harlow v. Fitzgerald,

457 U.S. 800, 807 (1982) (quoting Butz v. Economou,

438 U.S. 478, 506 (1978)). But contractors are not

government officials. There is no public interest in

encouraging contractors to exercise policymaking

discretion. Nor may contractors wield “official

authority” in any relevant sense, id.; indeed, the

Government “cannot delegate regulatory authority to

a private entity” at all. Texas v. Comm’r of Internal

Revenue, 142 S. Ct. 1308, 1309 (2022) (statement of

Alito, J., respecting the denial of certiorari) (quoting

Dep’t of Transp. v. Ass’n of Am. Railroads, 575 U.S.

43, 61 (2015) (Alito, J., concurring)). Instead,

contractors are expected to comply with the terms of

their contracts and follow applicable law.

Second, even if contractors were on the same

footing as the government itself—and they are not—

that still would not suffice to bring Yearsley denials

within Cohen’s narrow scope, because GEO’s rule

would grant contractors interlocutory appeals without

regard to the clarity of the rights they violated. As this

Court has explained, “only some orders denying an

asserted right to avoid the burdens of trial qualify” for

Cohen treatment, Will, 546 U.S. at 351, since a great

many rights “might loosely be described” as such,

12

Digital Equip. Corp., 511 U.S. at 873. Thus,

ascertaining whether a class of orders satisfies

Cohen’s third requirement entails “a judgment about

the value of the interests that would be lost through

rigorous application of a final judgment requirement.”

Will, 546 U.S. at 351-52 (quoting Digital Equip. Corp.,

511 U.S. at 878-79).

In the qualified immunity context, this Court has

reasoned, the core interest at stake is the “fear of

inhibiting able people from exercising discretion in

public service if a full trial were threatened whenever

they acted reasonably in the face of law that is not

‘clearly established.’” Id. at 352. In other words, “[t]he

nub of qualified immunity” under this Court’s cases

“is the need to induce officials to show reasonable

initiative when the relevant law is not ‘clearly

established . . . .’” Id. at 353. That is why the Court

has found “a quick resolution of a qualified immunity

claim,” including the right to an interlocutory appeal,

“essential”—“the preservation of initiative,” not

simply “the avoidance of litigation for its own sake.”

Id.

There is, of course, no equivalent component of

Yearsley. If GEO’s view were to prevail, contractors

would enjoy “derivative sovereign immunity” and an

immediate right to an appeal regardless of how

obviously their actions violated settled law. Perhaps

for this reason, GEO argues broadly that requiring

contractors to reserve appeals until final judgment

would “[h]amstring [g]overnment.” Petr. Br. 45; see id.

13

at 45-48. 3 But the same argument could be made

regarding litigation against actual government

employees—yet even in that context, “simply

abbreviating litigation troublesome to Government

employees” is not “important enough for Cohen

treatment.” Will, 546 U.S. at 353. Otherwise, “28

U.S.C. § 1291 would fade out whenever the

Government or an official lost an early round that

could have stopped the fight.” Id. at 354.

“The upshot is that, compared with Mitchell,

considerations of delay . . . and wise use of appellate

resources” counsel against an interlocutory appeal of

a district court’s Yearsley denial. Johnson, 515 U.S. at

317. In Johnson, such “countervailing considerations”

were so forceful that they overcame the justifications

for interlocutory qualified immunity appeals set forth

in Mitchell. See id. at 317-18. Here, those

justifications are absent, so the answer is even

clearer: Cohen does not apply.

B.

Extending Cohen as GEO urges would

clog the courts of appeals with

quotidian interlocutory disputes.

This Court has often “reiterate[d] that the class of

collaterally appealable orders must remain ‘narrow

and selective in its membership.’” Mohawk Industries,

Inc., 558 U.S. at 113 (quoting Will, 546 U.S. at 350).

Otherwise, the statutory final judgment rule—and its

3 By GEO’s own accounting, this is already the majority rule. See

Pet. for Cert. 14-15. Roughly half of the U.S. population resides

in the five circuits that GEO concedes require this—yet the sky

has not fallen. See U.S. Census Bureau, 2020 Population

and

Housing

State

Data

(Aug.

12,

2021),

https://www.census.gov/library/visualizations/interactive/2020population-and-housing-state-data.html.

14

policy of “efficient judicial administration”—would be

lost. Richardson-Merrell, Inc., 472 U.S. at 430; accord,

e.g., Mohawk Industries, Inc., 558 U.S. at 106-07.

“This admonition has acquired special force in recent

years with the enactment of legislation designating

rulemaking, ‘not expansion by court decision,’ as the

preferred means for determining whether and when

prejudgment orders should be immediately

appealable.” Mohawk Industries, Inc., 558 U.S. at 113

(quoting Swint v. Chambers Cnty. Comm’n, 514 U.S.

35, 48 (1995)); see also id. at 114-15, 118-19 (Thomas,

J., concurring in part and concurring in the

judgment).

GEO’s position contravenes this admonition to a

stunning degree. As GEO admits, the federal

government enters into several million contracts each

year. See Petr. Br. 46; see also U.S. Government

Accountability Office, A Snapshot of GovernmentWide Contracting for FY 2024 (June 24, 2025). 4

Consider a handful of examples from FY 2024 alone.

That year, according to federal government data, the

General Services Administration awarded hundreds

of contracts involving janitorial, custodial, or snow

removal services collectively worth over $300 million. 5

The Department of Education awarded over 70

contracts involving computer systems design and

technological support collectively worth roughly $368

4 https://www.gao.gov/blog/snapshot-government-widecontracting-fy-2024-interactive-dashboard.

USASpending.gov, Advanced Search (last viewed Sept. 20,

2025),

https://www.usaspending.gov/search?hash=320d376889bb3cc4d

874c65a88a13be5.

5

15

million. 6 The Environmental Protection Agency

awarded over $4 million in contracts for roof

replacements. 7 And the Department of Health and

Human Services awarded nearly 70 contracts

involving extermination and pest control services

totaling $4.6 million. 8

Under GEO’s rule, every single private entity on

the other side of these contracts would be entitled to

an immediate appeal of a district court’s fact-bound

denial of an asserted Yearsley defense—regardless of

whether the contractor in question “provide[s] for the

national defense,” Petr. Br. 46, or defends against

mosquito bites. See Digital Equip. Corp., 511 U.S. at

868 (“warn[ing] that the issue of appealability under

§ 1291 is to be determined for the entire category to

which a claim belongs,” not simply in relation to “the

litigation at hand”). By way of example, contractors

have already invoked Yearsley in cases involving:

•

Products liability claims against the designer of

a bulk USPS mail container that struck a man’s

heel and overran his foot, see Reynolds v. Penn

6 USASpending.gov, Advanced Search (last viewed Sept. 20,

2025),

https://www.usaspending.gov/search?hash=44c1e3fa3839dd237

efcf89c2e50d42c.

USASpending.gov, Advanced Search (last viewed Sept. 20,

2025),

https://www.usaspending.gov/search?hash=233e810f318d0368c

279a3c843cd1a58.

7

USASpending.gov, Advanced Search (last viewed Sept. 20,

2025),

https://www.usaspending.gov/search?hash=549fc7c62a2ce0c749

260942dc80e50c.

8

16

Metal Fabricators, Inc., 550 N.Y.S.2d 811, 81112 (Sup. Ct. 1990);

•

Trespass claims against Amtrak and its

contractors for filling a neighbor’s undeveloped

land with contaminated soil, see Gordon v.

Nat’l R.R. Passenger Corp., No. 10753, 2002

WL 550472, at *1-4, 13 (Del. Ch. Apr. 5, 2002);

•

Tort claims against a contractor operating a

synthetic rubber plant, see Lalonde v. Delta

Field Erection, No. 96-cv-3244, 1998 WL

34301466, at *2, 7-8 (M.D. La. Aug. 6, 1998);

and

•

An intellectual-property dispute between a

skills-testing company and its jilted formerpartner-turned-competitor, see ACT, Inc. v.

Worldwide Interactive Network, Inc., 46 F.4th

489, 494, 506 (6th Cir. 2022).

See also Br. in Opp. 7 (listing further examples

involving unwanted text messages, a tree-removal

company, janitorial services, and the architect of an

allegedly defective jury box).

Are these disputes of sufficiently compelling

importance to overcome “the substantial finality

interests § 1291 is meant to further”? Will, 546 U.S.

at 350. To answer in the negative is hardly to “secondguess[]” these contractors’ contributions. Petr. Br. 46.

It cannot be gainsaid that their work matters—just as

no one could reasonably dispute the value of “the

public policy favoring voluntary resolution of

disputes,” Digital Equip. Corp., 511 U.S. at 881, or the

importance of the defense of claim preclusion, see

Will, 546 U.S. at 355.

17

But those interests were not of such overriding

importance as to require Cohen treatment. See id.;

Digital Equip. Corp., 511 U.S. at 880-81. Nor are

these. And given the sheer scale and breadth of

government contracting in the modern era, affording

an immediate appeal each and every time a contractor

chose to assert a Yearsley defense (and a district court

rejected it) would impose unprecedented burdens on

litigants and courts. It would make a mockery of the

requirement that Cohen be construed strictly to

protect “particular value[s] of a high order”—i.e., that

the tough medicine of interlocutory appeal be reserved

for a “substantial public interest.” Will, 546 U.S. at

352-53; accord Lauro Lines S.r.l. v. Chasser, 490 U.S.

495, 502 (1989) (Scalia, J., concurring). It would

disrespect Congress’s determination that rulemaking

is the proper mechanism for “defin[ing] when a ruling

of a district court is final for the purposes of appeal

under section 1291.” 28 U.S.C. § 2072(c); accord 28

U.S.C. § 1292(e); Mohawk Industries, Inc., 558 U.S. at

113-14. And it would “needlessly”—and drastically—

“perpetuate[] a judicial policy that [the Court] for

many years ha[s] criticized and struggled to limit.”

Mohawk Industries, Inc., 558 U.S. at 115 (Thomas, J.,

concurring in part and concurring in the judgment).

For all these reasons, this Court should reject

GEO’s attempt to supercharge Cohen and circumvent

the final judgment rule.

II.

Bureaucrat-Conferred

Immunity-byContract Imperils the Separation of

Powers and Threatens Individual Liberty.

This Court can dispose of this case under Cohen

alone, regardless of whether the Yearsley defense

constitutes an outright immunity from suit. But GEO

18

isn’t just wrong about Cohen’s scope. GEO’s other core

premise—that Yearsley announced a sweeping form of

“derivative sovereign immunity” not found in any

statute or constitutional provision—also makes little

sense.

As Respondents explain, GEO’s theory of

immunity-by-contract ignores Yearsley’s own terms

and contravenes centuries of law establishing that the

sovereign’s immunity belongs to the sovereign alone.

See Resp. Br. 4-10, 22-26. Amici write briefly to

emphasize that GEO’s theory also conflicts with core

separation-of-powers

principles—principles

this

Court has recently and repeatedly enforced, even at

significant cost. And empowering federal bureaucrats

to bestow private actors with the immunity of the

sovereign—immunity that sweeps more broadly, in

relevant part, than that afforded to government

employees themselves—would weaken the very

accountability the separation of powers protects.

GEO puzzlingly contends that affirmance would

“frustrate the separation of powers” because Congress

created the Nation’s immigration detention apparatus

and authorized privately run detention facilities. Petr.

Br. 48. That gets matters exactly backwards. Because

“Congress has actively legislated in the area of”

government contracting—including, as GEO notes, in

the specific context of immigration detention—“but

has not enacted a statutory” immunity of the kind

GEO urges, “‘separation-of-powers principles’ . . .

counsel against recognizing an implied” immunity

here. Goldey, 606 U.S. at 944 (quoting Ziglar, 582 U.S.

at 135).

This Court’s recent Bivens jurisprudence makes

this unmistakably clear. The Court has remarked that

19

it is “[n]ow long past ‘the heady days in which [it]

assumed common-law powers to create causes of

action,’” and it has “come ‘to appreciate more fully the

tension between’ judicially created causes of action

and ‘the Constitution’s separation of legislative and

judicial power.’” Egbert v. Boule, 596 U.S. 482, 491

(2022) (quoting Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 75 (2001) (Scalia, J., concurring); Hernández

v. Mesa, 589 U.S. 93, 100 (2020)). The Court therefore

has emphasized that where, as here, “an issue

‘involves a host of considerations that must be

weighed and appraised,’ it should be committed to

‘those who write the laws’ rather than ‘those who

interpret them.’” Ziglar, 582 U.S. at 135-36 (quoting

United States v. Gilman, 347 U.S. 507, 512-13 (1954)).

The Court has held steadfast to this principle, even as

many (including amici themselves) have respectfully

expressed concern over restricting the Bivens remedy.

“[A]bsent utmost deference to Congress’ preeminent

authority in this area,” the Court has reasoned, “the

courts ‘arrogat[e] legislative power.’” Egbert, 596 U.S.

at 492 (quoting Hernández, 589 U.S. at 100).

This principle paints a clear path here. For the

same reasons this Court has held “creating a cause of

action” to be “a legislative endeavor,” Egbert, 596 U.S.

at 491, creating an immunity is one, too. And if “the

Legislature is in the better position to consider if ‘the

public interest would be served’ by imposing a ‘new

substantive legal liability,’” Congress is plainly in a

better position to consider whether to immunize an

entity as well. Ziglar, 582 U.S. at 136 (quoting

Schweiker v. Chilicky, 487 U.S. 412, 426-27 (1988))

(emphasis added); see The Apollon, 22 U.S. (9 Wheat.)

362, 367 (1824) (although “under justifiable

circumstances, the Legislature will doubtless apply a

20

proper indemnity,” “this Court can only look to the

questions, whether the laws have been violated”). In

other contexts, Congress has exercised its judgment to

craft such immunities from suit—but it has not done

so here. See, e.g., 42 U.S.C. § 247d-6d(a)(1), (e)(10)

(congressionally-enacted “immun[ity] from suit” with

“interlocutory appeal” not applicable here); 15 U.S.C.

§ 37(b) (congressionally-enacted “immunity from suit

under the antitrust laws, including the right not to

bear the cost, burden, and risk of discovery and trial,”

for certain charitable annuities and trusts).

If anything, a judge-made immunity from suit is

more intrusive on legislative power than a judgemade cause of action. A judge-made immunity from

suit does not just supplement other legal obligations

created by Congress; it outright eliminates a legal

obligation—here, the prohibition on forced labor in

the Trafficking Victims Protection Act (“TVPA”)—that

Congress expressly prescribed. That improperly

“substitute[s] [courts’] own policy preferences for the

mandates of Congress,” and it “represent[s] precisely

the sort of ‘freewheeling policy choice[]’” this Court

has often “disclaimed the power to make.” Ziglar, 582

U.S. at 159-60 (Thomas, J., concurring in part and

concurring in the judgment); accord, e.g., McMellon v.

United States, 387 F.3d 329, 352 (4th Cir. 2004)

(Wilkinson, J., concurring) (cautioning against

substituting “a judicially-derived doctrine for

congressionally-crafted language”). Just as this Court

“urge[s] caution” when it comes to creating new

remedies not authorized by Congress, it should

hesitate further still before creating new immunities

from suit “in the absence of affirmative action by

Congress.” Ziglar, 582 U.S. at 136 (opinion of the

21

Court) (quoting Carlson v. Green, 446 U.S. 14, 18

(1980)).

And if that were not enough to justify judicial

restraint, GEO’s theory of derivative sovereign

immunity would enable agency contracting officials to

endow private corporations with even more immunity

than actual government officials. Public officials enjoy

qualified immunity only for violations of rights that

are not clearly established. See, e.g., Mitchell, 472

U.S. at 524. In contrast, under GEO’s theory, private

contractors like GEO would enjoy “derivative

sovereign immunity” even for obvious, settled

violations of rights like those established in the TVPA.

It would defy logic and common sense if contracting

bureaucrats could confer private entities with the

immunity of the sovereign and, in doing so, vest those

private entities with broader immunity than the

officials themselves enjoyed. Cf. Brady v. Roosevelt

S.S. Co., 317 U.S. 575, 583-84 (1943) (explaining that

recognizing an “[i]mmunity from suit” or indemnity

“by reason of concessions made by contracting officers

of the government” would improperly “subtract from

the legal remedies which the law has afforded” and

“complicate and delay the enforcement of rights”). 9

Ultimately, although amici do not see eye-to-eye on

every issue, they agree on a fundamental premise:

9 Moreover, GEO’s theory seemingly would afford interlocutory

appeals to private contractors on issues of fact and law. In this

respect, too, it would perversely offer contractors more protection

than government officials themselves, and it would “interfere”

even more with the final judgment rule than qualified immunity

appeals “limited to . . . neat abstract issues of law,” Johnson, 515

U.S. at 317 (quoting 15A C. Wright, A. Miller, & E. Cooper,

Federal Practice and Procedure § 3914.10, p. 664 (1992)).

22

“Liberty requires accountability.” Dep’t of Transp.,

575 U.S. at 57 (Alito, J., concurring). These “values of

liberty and accountability” motivate amici’s litigation

efforts. Wellness Int’l Network, Ltd. v. Sharif, 575

U.S. 665, 696 (2015) (Roberts, C.J., dissenting). The

separation of powers protects these values at a

structural level, see id.—and it dooms GEO’s theory of

delegated immunity, which would place these values

at grave risk. Government contracting officials cannot

weaken accountability for violations of individual

liberties by endowing private corporations with the

immunity of the sovereign through their contracting

decisions.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

23

Respectfully submitted,

Amit Jain

Counsel of Record

Ellen Noble

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

501 H Street NE, Suite 275

Washington, DC 20002

(202) 869-1664

amit.jain@macarthurjustice.org

Anya Bidwell

Patrick Jaicomo

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900

Arlington, VA 20003

(703) 682-9320

abidwell@ij.org

Counsel for Amici Curiae

SEPTEMBER 2025