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

No. 24-758

In the Supreme Court of the United States

THE GEO GROUP, INC., PETITIONER

v.

ALEJANDRO MENOCAL, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

D. JOHN SAUER

Solicitor General

Counsel of Record

BRETT A. SHUMATE

Assistant Attorney General

SARAH M. HARRIS

Deputy Solicitor General

SOPAN JOSHI

Assistant to the

Solicitor General

MICHAEL S. RAAB

ASHLEY C. HONOLD

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the collateral-order doctrine permits

immediate appeal from a summary-judgment ruling

denying the so-called “derivative sovereign immunity”

defense.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Introduction................................................................................... 2

Statement ...................................................................................... 3

Summary of argument ................................................................. 5

Argument....................................................................................... 8

A. Collateral orders must involve issues that are

final, completely separate from the merits, and

effectively unreviewable on appeal from final

judgment ......................................................................... 8

B. Orders denying “derivative sovereign immunity”

are effectively reviewable on appeal from final

judgment ....................................................................... 13

1. Collateral orders generally involve true

immunities from suit ............................................. 13

2. Immunities from suit generally are not

delegable ................................................................. 15

3. “Derivative sovereign immunity” is a defense

to liability, not an immunity from suit ................. 17

4. Orders denying “derivative sovereign

immunity” do not vindicate constitutional

interests .................................................................. 22

5. Petitioner’s analogy to qualified immunity is

inapt ........................................................................ 23

C. Orders denying “derivative sovereign immunity”

do not satisfy the other collateral-order

requirements, but this Court need not rule on

those grounds ............................................................... 27

D. Courts should address petitioner’s valid concerns

through other avenues ................................................. 29

Conclusion ................................................................................... 33

(III)

IV

TABLE OF AUTHORITIES

Cases:

Page

Abney v. United States, 431 U.S. 651 (1977) .......... 10, 15, 22

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

46 F.4th 489 (6th Cir. 2022) ............................................... 29

Al Shimari v. CACI Premier Technology, Inc.,

775 Fed. Appx. 758 (4th Cir. 2019), cert. denied,

141 S. Ct. 2850 (2021) ......................................................... 31

Bolivarian Republic of Venezuela v. Helmerich &

Payne International Drilling Co.,

581 U.S. 170 (2017)........................................................ 15, 28

Brady v. Roosevelt Steamship Co.,

317 U.S. 575 (1943).................................................. 16, 17, 26

CACI Premier Technology, Inc. v. Al Shimari,

141 S. Ct. 2850 (2021) ........................................................... 1

Campbell-Ewald Co. v. Gomez,

577 U.S. 153 (2016).......................................16, 19, 21, 22, 26

Camreta v. Greene, 563 U.S. 692 (2011) .............................. 23

Cobbledick v. United States, 309 U.S. 323 (1940) ........... 9, 10

Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541 (1949)...................................................... 2, 5, 10

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) ......... 11

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

511 U.S. 863 (1994).................................................. 10, 13, 14

FDIC v. Meyer, 510 U.S. 471 (1994) .................................... 21

Filarsky v. Delia, 566 U.S. 377 (2012) ...................... 20, 22-24

Flanagan v. United States, 465 U.S. 259 (1984) ................ 10

Gingras v. Think Finance, Inc., 922 F.3d 112

(2d Cir. 2019), cert. denied, 140 S. Ct. 856 (2020) ............ 15

Helstoski v. Meanor, 442 U.S. 500 (1979) ........................... 14

Johnson v. Jones, 515 U.S. 304 (1995) ........................... 10, 25

Knick v. Township of Scott, 588 U.S. 180 (2019) ................ 18

V

Cases—Continued:

Page

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

490 U.S. 495 (1989)................................. 12, 14, 15, 23, 26, 31

Martin v. Halliburton, 618 F.3d 476 (5th Cir. 2010) ......... 32

McMahon v. Presidential Airways, Inc.,

502 F.3d 1331 (11th Cir. 2007) ........................................... 29

Memorial Hospital v. Mercury Construction Corp.,

460 U.S. 1 (1983) ................................................................. 11

Midland Asphalt Corp. v. United States,

489 U.S. 794 (1989).................................................. 10, 11, 13

Mitchell v. Forsyth, 472 U.S. 511 (1985) ......13, 15, 20, 27, 28

Mohawk Industries, Inc. v. Carpenter,

558 U.S. 100 (2009).......................................10, 12, 22, 29, 33

Moses H. Cone Memorial Hospital v. Mercury

Construction Corp., 460 U.S. 1 (1983) .............................. 11

Murray’s Lessee v. Hoboken Land & Improvement

Co., 18 How. 272 (1855) ................................................ 25, 26

Nixon v. Fitzgerald, 457 U.S. 731 (1982) ...................... 14, 22

Nwauzor v. GEO Group, Inc.:

127 F.4th 750 (9th Cir. 2025) .................................... 30, 32

146 F.4th 1280 (9th Cir. 2025) ........................................ 31

Osborn v. Haley, 549 U.S. 225 (2007) .................................. 15

Owen v. City of Independence, 445 U.S. 622 (1980) ........... 24

Owino v. CoreCivic, Inc., 60 F.4th 437 (9th Cir.

2022), cert. denied, 143 S. Ct. 2612 (2023) ........................ 32

Posada v. Cultural Care, Inc.,

66 F.4th 348 (1st Cir. 2023) ................................................ 29

Procunier v. Navarette, 434 U.S. 555 (1978) ...................... 24

Puerto Rico Aqueduct & Sewer Authority v. Metcalf

& Eddy, Inc., 506 U.S. 139 (1993) ............................... 14, 22

Randolph v. Donaldson, 9 Cranch 76 (1815) ...................... 30

Republic of Iraq v. Beaty, 556 U.S. 848 (2009) ................... 15

Richardson v. McKnight, 521 U.S. 399 (1997) ............. 20, 24

VI

Cases—Continued:

Page

Ritzen Group, Inc. v. Jackson Masonry, LLC,

589 U.S. 35 (2020) ............................................................... 10

Sell v. United States, 539 U.S. 166 (2003) ........................... 12

Sloan Shipyards Corp. v. United States Shipping

Board Emergency Fleet Corp.,

258 U.S. 549 (1922)........................................................ 16, 17

Swint v. Chambers County Commission,

514 U.S. 35 (1995) ................................................... 21, 22, 23

Thryv, Inc. v. Click-To-Call Technologies, LP,

590 U.S. 45 (2020) ............................................................... 26

Trump v. United States, 603 U.S. 593 (2024) ............... 14, 28

United States v. Gooding, 25 U.S. 460 (1827) ..................... 19

United States v. Hollywood Motor Car Co.,

458 U.S. 263 (1982)........................................................ 24, 27

United States v. MacDonald, 435 U.S. 850 (1978) ....... 11, 12

United States v. Shaw, 309 U.S. 495 (1940) ........................ 20

Van Cauwenberghe v. Biard, 486 U.S. 517 (1988) ........ 10-15

Wilkins v. United States, 598 U.S. 152 (2023) .................... 26

Will v. Hallock,

546 U.S. 345 (2006)..................... 10, 12, 14, 21, 22, 27, 28, 32

World Trade Center Disaster Site Litigation, In re,

521 F.3d 169 (2d Cir. 2008) ................................................ 29

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

309 U.S. 18 (1940) ............................ 2, 4, 6, 17-19, 21, 22, 25

Constitution, statutes, and rule:

U.S. Const.:

Art. VI, Cl. 2 (Supremacy Clause) ................................. 30

Amend. XI .............................................................. 6, 14, 22

Foreign Sovereign Immunities Act of 1976,

28 U.S.C. 1330, 1602 et seq. ................................................ 28

VII

Statutes and rule—Continued:

Page

Judiciary Act of 1789, ch. 20, 1 Stat. 73:

§ 21, 1 Stat. 83-84 ............................................................... 8

§ 22, 1 Stat. 84-85 ............................................................... 8

§ 25, 1 Stat. 85-87 ............................................................... 8

Suits in Admiralty Act, ch. 95, 41 Stat. 525 ......................... 17

6 U.S.C. 112(b)(2)..................................................................... 3

8 U.S.C. 1231(g) ....................................................................... 3

18 U.S.C. 1589 .......................................................................... 4

18 U.S.C. 1595 .......................................................................... 4

28 U.S.C. 1291 ............................................................... 1, 2, 4-6

28 U.S.C. 1292 .......................................................................... 2

28 U.S.C. 1292(b) ................................................3, 8, 28, 31, 32

28 U.S.C. 1292(e) ........................................................... 3, 8, 32

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

Fed. R. Civ. P. 23(f ) ............................................................... 32

Miscellaneous:

Kate Sablosky Elengold & Jonathan D. Glater,

The Sovereign Shield, 73 Stan. L. Rev. 969 (2021) ......... 20

President’s Commission on Privatization,

Privatization: Toward More Effective Government

(Mar. 1988) .......................................................................... 31

Resolution No. 2, 1st Cong., 1st Sess.,

1 Stat. 96 (1789) ................................................................... 30

Resolution No. 5, 1st Cong., 3d Sess.,

1 Stat. 225 (1791) ................................................................. 30

Restatement (Second) of Agency (1958):

Vol. 1 ............................................................... 16, 19, 20, 23

Vol. 2 ..........................................................15, 16, 19, 20, 22

2 Restatement (Third) of Agency (2006) ............................. 26

In the Supreme Court of the United States

No. 24-758

THE GEO GROUP, INC., PETITIONER

v.

ALEJANDRO MENOCAL, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

This case concerns whether a pretrial order denying

a federal contractor’s “derivative sovereign immunity”

defense is immediately appealable as a “collateral order.” The United States has a substantial interest in the

resolution of that question. The federal government relies on contractors to perform a vast array of vital governmental functions, and that defense’s availability is

critical to those efforts. The government also has an

interest in the correct interpretation and application of

28 U.S.C. 1291, the federal statute conferring appellate

jurisdiction over “final” orders of the district courts. In

CACI Premier Technology, Inc. v. Al Shimari, 141 S. Ct.

2850 (2021) (No. 19-648), this Court invited the Solicitor

General to express the United States’ views on the same

question presented in this case.

(1)

2

INTRODUCTION

Petitioner, a federal contractor, contends that the

summary-judgment order rejecting its “derivative sovereign immunity” claim was immediately appealable.

That contention is incorrect. With limited exceptions,

appellate courts have jurisdiction to review only “final

decisions” of district courts. 28 U.S.C. 1291; cf. 28

U.S.C. 1292 (listing exceptions). Under the “collateral

order doctrine” of Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541 (1949), an order that does not terminate the litigation is a “final decision” only if, among

other things, it resolves an issue that would be effectively unreviewable on appeal from a final judgment.

The order here does not qualify. The prototypical

example of an “effectively unreviewable” issue is an

assertion of immunity from standing trial in the first

place—such as absolute executive or legislative immunity, Eleventh Amendment immunity, or foreign or tribal

sovereign immunity. A right not to stand trial would be

irretrievably lost once trial occurs, even if the defendant

ultimately prevails on the merits. Indeed, the defining

feature of such an immunity is that it precludes trial regardless of whether the defendant acted lawfully.

Despite its misleading name, “derivative sovereign

immunity” is not such an immunity. Instead, it is a defense to liability. Under that defense, a government

contractor cannot be held “liable for his conduct” unless

“he exceeded his authority” or the authority “was not

validly conferred” by the government. Yearsley v. W.A.

Ross Construction Co., 309 U.S. 18, 21 (1940). That reflects the common-law doctrine that a principal who has

a privilege to take a certain action (that would be unlawful if committed by others) may delegate that privilege

to an agent, who may then lawfully take the privileged

3

action on the principal’s behalf. Under “derivative

sovereign immunity,” therefore, a government contractor avoids liability only to the extent that—and only

because—he acts lawfully. That distinguishes it from

an actual immunity. And like any other defense to liability, the Yearsley defense can be effectively vindicated

on appeal by reversal of an adverse final judgment.

That basic insight is sufficient to resolve this case.

Although pretrial orders denying Yearsley defenses

are not immediately appealable, that defense is critically important to government contractors. Interlocutory review of such orders under 28 U.S.C. 1292(b) may

therefore be appropriate in many cases. In addition,

Congress has authorized this Court to promulgate rules

specifying interlocutory orders that may be appealed as

of right. See 28 U.S.C. 1292(e). That rulemaking option

is preferable to expanding the limited class of collateral

orders.

STATEMENT

1. Petitioner operates a private detention facility in

Aurora, Colorado, under contract with United States

Immigration and Customs Enforcement (ICE). Pet.

App. 4a. Under petitioner’s sanitation policy, detainees

must “keep clean and sanitize all commonly accessible

areas of the housing unit, including walls, floors, windows, window ledges, showers, sinks, toilets, tables, and

chairs.” Ibid. (brackets and citation omitted). A detainee who fails to comply is subject to escalating disciplinary sanctions. Id. at 4a-5a. Petitioner also offers a

voluntary work program under which it pays detainee

participants $1 per day to “perform[] various jobs, including preparing food, operating the library, barbering, and doing the laundry.” Id. at 5a; see id. at 5a-6a.

4

Respondents are a class of detainees who were detained at the Aurora facility. Pet. App. 6a. They allege

that the sanitation policy amounts to unlawful forced

labor, in violation of 18 U.S.C. 1589 and 1595; and that

the $1 daily wage in the voluntary work program violates Colorado’s minimum-wage statute and constitutes

unjust enrichment. Pet. App. 6a & n.2, 33a. The district

court dismissed the minimum-wage claim, 113 F. Supp.

3d 1125, but allowed the forced-labor and unjustenrichment claims to proceed to discovery. Pet. App.

6a-7a.

The district court granted respondents’ motion for

summary judgment and denied petitioner’s cross-motion,

limited to petitioner’s assertion of “derivative sovereign

immunity.” Pet. App. 32a-130a. Citing Yearsley v. W.A.

Ross Construction Co., 309 U.S. 18 (1940), the court described “derivative sovereign immunity” as a defense

that “protects government contractors, as agents of the

government, from liability for actions that were directed

or required by the federal government, so long as the

government’s authority to carry out the contracted-for

services was validly conferred by Congress.” Pet. App.

67a. The court rejected petitioner’s assertion of that

defense, finding that “ICE neither directed nor required [petitioner] to improperly compel detainees’ labor or to compensate [voluntary work program] participants only $1.00 per day.” Id. at 69a.

2. The court of appeals dismissed petitioner’s appeal

for lack of appellate jurisdiction. Pet. App. 1a-31a.

The court of appeals observed (Pet. App. 11a-12a)

that an order that does not terminate the litigation ordinarily is not a “final decision[]” over which the court

has appellate jurisdiction under 28 U.S.C. 1291. The

court explained, however, that an ostensibly non-final

5

order may nevertheless qualify as “final” for purposes

of Section 1291 under the “collateral order doctrine” of

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541

(1949), if the order (1) “conclusively determines the disputed question”; (2) “resolves an important issue completely separate from the merits of the action”; and

(3) “is effectively unreviewable on appeal from a final

judgment.” Pet. App. 12a (brackets and citation omitted).

The court of appeals held that the district court’s order did not satisfy the second condition because “an order denying the applicability of the Yearsley doctrine”

cannot be “reviewed completely separate from the merits.” Pet. App. 18a; see id. at 17a-29a. The court of appeals explained that “there is overlap between the second Yearsley prong—viz., whether the government directed the contractor’s challenged actions—and the

merits of a plaintiff ’s claims challenging the lawfulness

of those actions.” Id. at 20a. The court further explained that “factual questions concerning what the

government did and did not specifically direct would be

at the heart of the Yearsley inquiry on the second prong

and also at the heart of the merits inquiry into the lawfulness of a contractor’s challenged actions.” Id. at 21a.

The court concluded that “[b]ecause [petitioner’s] failure as to this condition is fatal to our jurisdiction, we

need not address” the other Cohen conditions. Id. at

30a.

SUMMARY OF ARGUMENT

This Court should affirm the judgment below on the

alternative ground that the district court’s order is effectively reviewable on appeal from a final judgment because “derivative sovereign immunity” is not an immunity from suit, but a defense to liability.

6

A. In 28 U.S.C. 1291, Congress codified the longstanding rule that only final judgments may be appealed. Under the “collateral order doctrine” of Cohen

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

an order that does not terminate the litigation may be

“final” under Section 1291 if it (1) conclusively determines the disputed question; (2) resolves an important

issue completely separate from the merits; and (3) is effectively unreviewable on appeal from a final judgment.

When the defendant seeks review of an order denying a

motion to dismiss the litigation, the third condition generally requires the claimed right to be not merely a defense to liability or guilt, but a constitutional or statutory immunity from standing trial that implicates values of constitutional magnitude.

B. The “derivative sovereign immunity” defense does

not satisfy the third Cohen condition because it is not

truly an immunity from suit. Orders involving true immunities include those denying absolute executive or

legislative immunity, Eleventh Amendment immunity,

or foreign or tribal sovereign immunity. Such immunities generally are not delegable, as this Court has long

held. And their defining characteristic is that they permit the immunity-holder to avoid standing trial irrespective of guilt or liability.

“Derivative sovereign immunity,” in contrast, reflects the principle in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), that a contractor cannot be

held liable for exercising authority validly conferred by

the government. When the contractor stays within the

bounds of that conferred authority, it acts lawfully because the government has delegated to the contractor

its privilege to act in the specified manner. That distinguishes the Yearsley defense from true immunities,

7

which shield the holder from liability even when he acts

unlawfully. As with all merits defenses, a pretrial order

denying a Yearsley defense is thus effectively reviewable and vindicable on appeal from a final judgment. And

unlike the immunities described above, the Yearsley defense does not implicate values of constitutional magnitude.

Petitioner’s reliance on qualified immunity is misplaced. Like other immunities, but unlike “derivative

sovereign immunity,” qualified immunity applies even

when the defendant acts unlawfully. And by precluding

liability where the law was not clearly established, qualified immunity avoids timidity in public officials. But

that rationale is inapplicable to “derivative sovereign

immunity,” which extends only to the bounds of lawfully

delegated authority—whether or not those bounds were

clearly established. And while extending qualified immunity to private individuals ensures that they are not

deterred from public service, government contractors—

who can price litigation risks into their contracts—are

unlikely to be substantially deterred by the unavailability of immediate appeal.

C. Because orders denying Yearsley defenses do not

satisfy the third Cohen condition, this Court need not

address whether they satisfy the first two conditions

(conclusiveness and separateness from the merits).

Many collateral orders addressing immunities involve

at least some overlap with the merits, and a ruling on

the second Cohen condition would require exploring exactly how much overlap is permitted. That complication

can be avoided by affirming on the alternative ground

above. And the parties did not contest the first Cohen

condition below, making it unnecessary to address in

this case.

8

D. Although orders denying Yearsley defenses are

not collateral orders, courts should remain open to certifying such orders for interlocutory review under 28

U.S.C. 1292(b) where appropriate. The government relies heavily on contractors for a range of vital services

(including immigration detention), and the availability

of the Yearsley defense is critical to those efforts. Litigation over that defense may present novel issues that

warrant certification under Section 1292(b). In addition, Congress has authorized this Court to promulgate

rules permitting interlocutory appeal of certain types of

orders, 28 U.S.C. 1292(e), which is preferable to judicially expanding the limited class of collateral orders.

ARGUMENT

This Court should affirm the judgment below on an

alternative ground. The court of appeals reasoned that

it lacked appellate jurisdiction because the district court’s

order does not involve an issue separate from the merits. Pet. App. 17a-29a. That is correct. But this Court

should affirm on the more straightforward ground that

the order is effectively reviewable on appeal from a final

judgment because “derivative sovereign immunity” is

not a true immunity from suit, but instead a defense to

liability. Resolving the case on that ground would avoid

the need to address the other collateral-order requirements.

A. Collateral Orders Must Involve Issues That Are Final,

Completely Separate From The Merits, And Effectively

Unreviewable On Appeal From Final Judgment

1. “Finality as a condition of review is an historic

characteristic of federal appellate procedure,” dating to

the Judiciary Act of 1789, ch. 20, §§ 21-22, 25, 1 Stat.

83-87. Cobbledick v. United States, 309 U.S. 323, 324

(1940). Among other benefits, finality helps to avoid

9

“clog[ging] the courts through a succession of costly and

time-consuming appeals.” Flanagan v. United States,

465 U.S. 259, 264 (1984). It also avoids appellate review

“with less developed records” or “appeals that, had the

trial simply proceeded, would have turned out to be unnecessary.” Johnson v. Jones, 515 U.S. 304, 309 (1995).

The finality requirement is now codified in 28 U.S.C.

1291, which provides that the courts of appeals “shall

have jurisdiction of appeals from all final decisions of

the district courts of the United States, * * * except

where a direct review may be had in the Supreme

Court.” Ibid. A “ ‘final decision’ within the meaning of

§ 1291 is normally limited to an order” that “ ‘terminates

the action’ or ‘ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment.’ ” Ritzen Group, Inc. v. Jackson Masonry, LLC,

589 U.S. 35, 37-38 (2020) (brackets and citation omitted). Section 1291 and its predecessors reflect a

longstanding and “firm congressional policy against interlocutory or ‘piecemeal’ appeals,” Abney v. United

States, 431 U.S. 651, 656 (1977), which Congress has

“departed from only when observance of it would practically defeat the right to any review at all,” Cobbledick,

309 U.S. at 324-325.

This Court has “long given” Section 1291 a “practical

rather than a technical construction.” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949).

Accordingly, a “small class” of ostensibly non-final orders are treated as “final” if they “finally determine

claims of right separable from, and collateral to, rights

asserted in the action,” which are “too important to be

denied review.” Ibid. In applying that “collateral order

doctrine,” the Court “look[s] to categories of cases, not

to particular injustices.” Van Cauwenberghe v. Biard,

10

486 U.S. 517, 529 (1988); see Mohawk Industries, Inc.

v. Carpenter, 558 U.S. 100, 107 (2009) (“[O]ur focus is on

* * * the class of claims, taken as a whole.”) (citation

omitted).

This Court has emphasized that the collateral-order

doctrine “must ‘never be allowed to swallow the general

rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered.’ ” Mohawk, 558 U.S. at 106 (citation omitted). Accordingly,

the Court has repeatedly described the collateral-order

doctrine as “narrow,” Midland Asphalt Corp. v. United

States, 489 U.S. 794, 798 (1989); “stringent,” Digital

Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863,

868 (1994); and of “modest scope,” Will v. Hallock, 546

U.S. 345, 350 (2006). And “although the Court has been

asked many times to expand the ‘small class’ of collaterally appealable orders, [it] ha[s] instead kept it narrow and selective in its membership.” Ibid.

2. “[T]o come within the collateral order doctrine of

Cohen, the order must satisfy each of three conditions:

it must (1) ‘conclusively determine the disputed question,’ (2) ‘resolve an important issue completely separate from the merits of the action,’ and (3) ‘be effectively

unreviewable on appeal from a final judgment.’ ” Van

Cauwenberghe, 486 U.S. at 522 (citation omitted).

a. The first Cohen condition—conclusiveness as to

the disputed question—ensures that the decision on the

issue truly is final and not amenable to revisiting in the

district court. For example, an order denying a motion

to dismiss an indictment on speedy-trial grounds fails

that condition because any pretrial “estimate of the degree to which delay has impaired an adequate defense

tends to be speculative,” and therefore a denial “does

not indicate that a like motion made after trial—when

11

prejudice can be better gauged—would also be denied.”

United States v. MacDonald, 435 U.S. 850, 858-859

(1978). Likewise, an order denying class certification—

even one that might as a practical matter sound the

“death knell” of the litigation—is not a collateral order

because “such an order is subject to revision in the District Court.” Coopers & Lybrand v. Livesay, 437 U.S.

463, 469 (1978).

b. The second Cohen condition—that the issue be

truly collateral—is “a distillation of the principle that

there should not be piecemeal review of ‘steps towards

final judgment in which they will merge.’ ” Moses H.

Cone Memorial Hospital v. Mercury Construction

Corp., 460 U.S. 1, 12 n.13 (1983) (citation omitted). To

effectuate the congressional policy of avoiding “repetitive appellate review of substantive questions,” the issues in a collateral order must be “completely” separate

from the merits. Van Cauwenberghe, 486 U.S. at 527528. Where the issues in a pretrial order are “enmeshed

in the merits of the dispute,” allowing appeal “would

waste judicial resources.” Id. at 528. For example, an

order denying a motion to dismiss an indictment for failure to state an offense fails that condition because it

“goes to the very heart of the issues to be resolved at

the upcoming trial.” Abney, 431 U.S. at 663. So too a

denial of a motion to dismiss on forum non conveniens

grounds, because “in the main, the issues that arise in

forum non conveniens determinations will substantially

overlap factual and legal issues of the underlying dispute.” Van Cauwenberghe, 486 U.S. at 529.

c. The third Cohen condition requires that the asserted right “be ‘irretrievably lost’ absent an immediate

appeal.” Van Cauwenberghe, 486 U.S. at 524 (citation

omitted); see Midland Asphalt, 489 U.S. at 799 (requir-

12

ing “an asserted right the legal and practical value of

which would be destroyed if it were not vindicated before trial”) (citation omitted). Courts must focus on “the

substance of the right[],” not merely on the general “advantage to a litigant in winning his claim sooner.” MacDonald, 435 U.S. at 860 n.7.

For example, an order requiring a defendant to be

involuntarily medicated satisfies that condition because

“[b]y the time of trial [the defendant] will have undergone forced medication—the very harm that he seeks to

avoid.” Sell v. United States, 539 U.S. 166, 176-177 (2003).

But an order compelling disclosure of material allegedly

protected by attorney-client privilege fails that condition

—even though disclosure cannot be undone—because

the “substance of the right[],” MacDonald, 435 U.S. at

860 n.7, is to protect candid attorney-client communications, not to avoid disclosure for its own sake, and “in

deciding how freely to speak, clients and counsel are unlikely to focus on the remote prospect of an erroneous

disclosure order, let alone on the timing of a possible

appeal.” Mohawk, 558 U.S. at 110.

Where (as here) the order involves a defendant’s

claim that the litigation should be dismissed, the “critical question” for the third Cohen condition “is whether

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

trial.” Van Cauwenberghe, 486 U.S. at 524 (citation

omitted). The defendant also must identify “some particular value of a high order * * * in support of the interest in avoiding trial.” Will, 546 U.S. at 352; cf. Lauro

Lines s.r.l. v. Chasser, 490 U.S. 495, 502 (1989) (Scalia,

J., concurring) (claimed right must be “important

enough to be vindicated” by immediate appeal). Accordingly, the asserted right to avoid suit generally

must “rest[] upon an explicit statutory or constitutional

13

guarantee that trial will not occur.” Midland Asphalt,

489 U.S. at 801. For example, an asserted “privately

conferred right” to avoid trial under a settlement agreement generally does not qualify, as it does not “originat[e] in the Constitution or statutes.” Digital Equipment, 511 U.S. at 879.

B. Orders Denying “Derivative Sovereign Immunity” Are

Effectively Reviewable On Appeal From Final Judgment

The order denying petitioner’s “derivative sovereign

immunity” defense does not satisfy the third Cohen condition because “derivative sovereign immunity” is not a

genuine immunity from suit, but instead only a defense

to liability. Like other defenses, that defense may be

effectively reviewed and vindicated on appeal from a final judgment. The court of appeals did not address that

separate ground for affirmance, see Pet. App. 30a, but

because “the Cohen requirements go to an appellate

court’s subject-matter jurisdiction,” this Court may independently “assess whether each condition was met.”

Digital Equipment, 511 U.S. at 869 n.3.

1. Collateral orders generally involve true immunities

from suit

Orders denying a defendant’s motion for dismissal

generally satisfy the third Cohen condition only if they

rest on a true “immunity from suit rather than a mere

defense to liability.” Mitchell v. Forsyth, 472 U.S. 511,

526 (1985). This Court has recognized that “in some

sense, all litigants who have a meritorious pretrial claim

for dismissal can reasonably claim a right not to stand

trial.” Van Cauwenberghe, 486 U.S. at 524. Because a

case can never be “untried,” “almost every pretrial or

trial order might be called ‘effectively unreviewable’ in

14

the sense that relief from error can never extend to rewriting history.” Digital Equipment, 511 U.S. at 872.

But that has never been sufficient to circumvent the finality requirement.

Courts must therefore be wary of “a party’s agility”

in “characterizing the right asserted” as one not to

stand trial, and should “view claims of a ‘right not to be

tried’ with skepticism, if not a jaundiced eye.” Digital

Equipment, 511 U.S. at 872-873. For example, an asserted “right not be sued at all except in a [specified]

forum” does not satisfy the third Cohen condition because it is not a right “to avoid suit altogether.” Lauro

Lines, 490 U.S. at 501 (forum-selection clause); see Van

Cauwenberghe, 486 U.S. at 524 ( forum non conveniens).

Courts also must rigorously enforce the requirement

that appeal vindicate “some particular value of a high

order.” Will, 546 U.S. at 352. Examples include “honoring the separation of powers, preserving the efficiency of government and the initiative of its officials,

respecting a State’s dignitary interests, and mitigating

the government’s advantage over the individual.” Id. at

352-353.

The small class of orders that satisfy those stringent

requirements thus involve constitutional immunities

from trial or statutory immunities from trial that implicate constitutional concerns. The former include orders

denying presidential immunity from criminal process,

Trump v. United States, 603 U.S. 593, 635 (2024); other

claims of absolute executive or legislative immunity,

Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982); Helstoski

v. Meanor, 442 U.S. 500 (1979); Eleventh Amendment

immunity, Puerto Rico Aqueduct & Sewer Authority v.

Metcalf & Eddy, Inc., 506 U.S. 139, 144-147 (1993);

15

tribal sovereign immunity, e.g., Gingras v. Think Finance, Inc., 922 F.3d 112, 119-120 (2d Cir. 2019), cert.

denied, 140 S. Ct. 856 (2020); and a double-jeopardy defense to retrial, Abney, 431 U.S. at 656-662. The latter

include orders denying qualified immunity on legal

grounds, Mitchell, 472 U.S. at 530; substitution of the

United States as a defendant under the Westfall Act,

Osborn v. Haley, 549 U.S. 225, 238-239 (2007); and foreign sovereign immunity, cf. Bolivarian Republic of

Venezuela v. Helmerich & Payne International Drilling Co., 581 U.S. 170, 185 (2017); Republic of Iraq v.

Beaty, 556 U.S. 848, 854 (2009).

In each of those situations, the asserted right is not

merely to an acquittal or a finding of non-liability; it is

a statutory or constitutional right not to stand trial irrespective of guilt or liability, to vindicate values of constitutional magnitude. The claimed immunities in such

cases both would be “irretrievably lost” once trial occurs, Van Cauwenberghe, 486 U.S. at 524 (citation omitted), and are “important enough to be vindicated” by

immediate appeal, Lauro Lines, 490 U.S. at 502 (Scalia,

J., concurring). In contrast, merits defenses may be

fully vindicated on an appeal from (and by a reversal of )

a final judgment of liability or guilt.

2. Immunities from suit generally are not delegable

One feature of a true immunity from suit is that the

immunity holder generally may not transfer the immunity to someone else. For example, at common law, “[a]n

agent does not have the immunities of his principal

although acting at the direction of the principal.” 2 Restatement (Second) of Agency § 347(1), at 110 (1958)

(Restatement vol. 2). Immunities generally “are not

delegable” because they arise from “the relation between the parties or the status or position of the actor.”

16

1 Restatement (Second) of Agency § 217 cmt. b, at 469470 (1958) (Restatement vol. 1); see Restatement vol. 2,

§ 347 cmt. a, at 111 (“[Immunities] are strictly personal

to the individual and cannot be shared.”). Accordingly,

the “overriding public policy” that justifies “protect[ing]” the holder of the immunity does not justify extending similar protection to others who lack the requisite relationship, status, or position. Restatement vol. 2,

§ 347 cmt. a, at 111.

Federal law reflects that principle. Federal contractors do not “share the Government’s unqualified immunity from liability and litigation” in U.S. courts.

Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 166 (2016).*

As Justice Holmes long ago explained, while the federal

government generally “cannot be sued for a tort, * * *

its immunity does not extend to those that acted in its

name.” Sloan Shipyards Corp. v. United States Shipping Board Emergency Fleet Corp., 258 U.S. 549, 568

(1922); see Brady v. Roosevelt Steamship Co., 317 U.S.

575, 583 (1943) (“Immunity from suit * * * cannot be

* * * obtained” through “a contract between [the defendant] and the [government].”).

In Sloan, the Court rejected the government’s contention that the Emergency Fleet Corporation—a corporation wholly owned by the government and vested

by the government with “enormous powers”—“share[d]

the immunity of the sovereign from suit.” 258 U.S. at

566; see id. at 565. The Court explained that because

the United States’ “immunity does not extend to those

that acted in its name,” an “agent [of the government],

* Whether the government may invoke sovereign immunity to

shelter a contractor in a proceeding in a foreign or international

court or tribunal pursuant to applicable foreign or international law

is not presented in this case.

17

because he is agent, does not cease to be answerable for

his acts.” Id. at 567-568.

The Court reached the same result in Brady, in which

a private contractor operated a government-owned vessel on behalf of the United States Maritime Commission. When a customs inspector died from an accident

on that vessel, the contractor argued that it was “nonsuable for [its] torts” because it could be sued only pursuant to the statutory waiver of the government’s sovereign immunity in the Suits in Admiralty Act, ch. 95,

41 Stat. 525. Brady, 317 U.S. at 577. The Court rejected

that contention, holding that the contractor could not

obtain “[i]mmunity from suit” “by reason of a contract

between [it] and the [federal government].” Id. at 583.

Although the Court assumed that Congress “would

have the power to grant immunity to private operators

of government vessels for their torts,” it found “not the

slightest intimation” that Congress intended to make

“such a basic change in one of the fundamental laws of

agency” by “abolish[ing] all remedies which might exist

against a private company for torts committed during

its operation of government vessels under [government]

agency agreements.” Id. at 579-581.

3. “Derivative sovereign immunity” is a defense to liability, not an immunity from suit

a. Because a contractor cannot inherit or derive the

government’s immunity from suit, “derivative sovereign immunity” is something of an oxymoron. The defense known by that name instead reflects the conceptually distinct principle articulated in Yearsley v. W.A.

Ross Construction Co., 309 U.S. 18 (1940): A contractor

cannot be held liable for exercising authority validly

conferred by the government.

18

In Yearsley, the government contracted with a construction company to redirect the Missouri River as

specified in the contract, which resulted in the erosion

of about 95 acres of the plaintiffs’ land. 309 U.S at 1920. That land “was intended to be washed away as a

necessary part of the federal project” “up to a point predetermined by the Government” under the contract’s

“detailed specifications.” U.S. Amicus Br. at 5-6, Yearsley, supra (No. 39-156); see Pet. Br. at 6, 21, Yearsley,

supra (No. 39-156). The washing away of the land thus

“was all authorized and directed by the Government.”

Yearsley, 309 U.S. at 20.

This Court held that the contractor could not be held

liable for eroding the land. The Court assumed that the

actions would constitute a lawful “taking” of property

because the government by statute had “impliedly promised to pay [ just] compensation.” Yearsley, 309 U.S. at

21-22; cf. Knick v. Township of Scott, 588 U.S. 180, 200201 & n.7 (2019). The Court further held that because

the government could lawfully take the property, it

could “validly confer[]” on its contractor the authority

to do so. Yearsley, 309 U.S. at 22. The Court explained

that “no ground [existed] for holding [a government]

agent liable who is simply acting under the authority

thus validly conferred” because, in such circumstances,

“[t]he action of the agent is ‘the act of the government.’ ”

Ibid. (citation omitted).

Yearsley thus did not hold that the government could

confer its own immunity on a government contractor.

Rather, the case recognized that the government could

lawfully authorize its contractor to take actions that the

government itself could lawfully take. At the same time,

the Court acknowledged that a contractor could be held

liable if it “exceeded [the] authority” conferred by the

19

government or where the authority “was not validly

conferred.” Yearsley, 309 U.S. at 21. As the Court later

explained in Campbell-Ewald, “[w]hen a contractor violates both federal law and the Government’s explicit instructions, * * * no ‘derivative immunity’ shields the

contractor from suit by persons adversely affected by

the violation.” 577 U.S. at 166.

The principle reflected in Yearsley—that when the

government employs contractors, it generally can authorize them to take actions that the government could

lawfully perform itself—flows not from any derivative

“immunity” for unlawful acts, but from the common-law

rule that a principal may delegate to its agents its own

privilege to take certain actions lawfully, including “an

otherwise tortious act” that would be unlawful if committed by others. Restatement vol. 2, § 343 cmt. c, at

105; see Restatement vol. 1, § 217 cmt. a, at 469 (“A privilege may result from the consent of another” or “may

be created by the law irrespective of consent.”). At common law, “[a]n agent is privileged to do what otherwise

would constitute a tort if his principal is privileged to

have an agent do it and has authorized the agent to do

it.” Restatement vol. 2, § 345, at 108; see Restatement

vol. 1, § 17 & cmts. a and b, at 85-86 (discussing delegable privileges).

Generally, “[m]ost of these privileges are delegable,”

such that the privilege holder may lawfully authorize

another to perform the privileged act on the holder’s behalf. Restatement vol. 1, § 217, at 469. And when those

privileges are delegated to an agent, “[w]hatever the

agent does, within the scope of his authority, binds his

principal, and is deemed his act.” United States v.

Gooding, 25 U.S. 460, 469 (1827) (Story, J.); see Re-

20

statement vol. 1, § 140, at 349 (liability for contracts);

§ 221, at 492 (liability for torts).

Thus, for example, a sheriff has “the privilege * * *

to arrest” and interrogate people whom he has probable

cause to believe have committed crimes, even though

such arrests and interrogations generally would be unlawful if undertaken by a private party. Restatement

vol. 1, § 217 cmt. a, at 469. And “the sheriff can procure

assistance in” exercising that privilege from others, who

then likewise act lawfully when they help to detain or

interrogate a criminal suspect. Ibid.; see Filarsky v.

Delia, 566 U.S. 377, 388-389 (2012). But if the agent

exceeds the scope of the privilege delegated by the

principal—or if the principal never had the asserted

privilege to begin with—the agent’s conduct may give

rise to liability. Restatement vol. 2, § 343 cmt. c, at 105.

That is precisely the principle described in Yearsley and

Campbell-Ewald. See Elengold & Glater, The Sovereign Shield, 73 Stan. L. Rev. 969, 991 (2021) (“Yearsley

is rooted in traditional principal-agent concepts.”).

b. That understanding of “derivative sovereign immunity” distinguishes it from actual immunities, including the federal government’s sovereign immunity. The

critical feature of “an immunity” is that it “frees one

who enjoys it from a lawsuit whether or not he acted

wrongly.” Richardson v. McKnight, 521 U.S. 399, 403

(1997) (emphasis added). For example, “the essence of

absolute immunity is its possessor’s entitlement not to

have to answer for his conduct in a civil damages action.” Mitchell, 472 U.S. at 525. Likewise, where the

government has not waived it, sovereign immunity

serves as “an impregnable legal citadel where government * * * may operate undisturbed by the demands

of litigants.” United States v. Shaw, 309 U.S. 495, 501

21

(1940). Although “sovereign immunity shields the Federal Government and its agencies from suit” absent a

waiver, FDIC v. Meyer, 510 U.S. 471, 475 (1994), a determination that the government is immune from a particular suit does not mean that the challenged governmental conduct was lawful. It simply means that courts

are not authorized to grant relief based on the asserted

violation of a legal duty.

An immunity is thus quite different from a privilege,

which serves to legitimize the conduct of the privilegeholder or his appropriate delegee. When a government

contractor acting as an agent of the government exercises a validly delegated privilege, the contractor is not

immune from suit for unlawful conduct; rather, the contractor is protected from liability only to the extent—

and only because—it is acting lawfully. Yearsley, 309

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

Accordingly, “derivative sovereign immunity” is best

understood not as an immunity from suit—much less

one that derives from the government’s own sovereign

immunity—but instead as a defense to liability on the

merits. And, as a class, pretrial orders rejecting that

defense—as with all merits defenses—are not “effectively unreviewable on appeal from a final judgment.”

Will, 546 U.S. at 349 (citation omitted). Instead, the essence of the right encapsulated by that defense is fully

vindicable by a reversal on appeal of any judgment of

liability. See Swint v. Chambers County Commission,

514 U.S. 35, 43 (1995) (“An erroneous ruling on liability

may be reviewed effectively on appeal from final judgment.”); cf. United States v. Hollywood Motor Car Co.,

458 U.S. 263, 268 (1982) (per curiam) (same, for erroneous rulings in criminal proceedings, where “reversal of

the conviction and * * * a new trial free of prejudicial

22

error normally are adequate means of vindicating the

constitutional rights of the accused”).

4. Orders denying “derivative sovereign immunity” do

not vindicate constitutional interests

In addition, delaying appellate review until final

judgment of orders denying Yearsley defenses, as a

class, would not “ ‘imperil a substantial public interest’

or ‘some particular value of a high order.’ ” Mohawk,

558 U.S. at 107 (citation omitted). As noted, the classes

of orders held to satisfy that requirement generally

have involved constitutional immunities or statutory immunities of constitutional magnitude, such as the “dignitary interests” of States in protecting their Eleventh

Amendment immunity; the analogous interests of federal, foreign, and tribal governments in protecting their

respective sovereign immunities; the “separation of powers” concerns attendant to respecting absolute presidential immunity; and the need to protect citizens’ constitutional double-jeopardy rights against “the enormous prosecutorial power of the Government.” Will,

546 U.S. at 352 (citing, among others, Fitzgerald, supra;

Puerto Rico Aqueduct, supra; and Abney, supra).

Yearsley rests on common-law principles, not the

Constitution or statutes. And though unquestionably

important, it does not implicate interests of sufficient

magnitude to satisfy the collateral-order doctrine. That

contractors perform work for the government itself is

insufficient, as evidenced by cases holding that even

government employees generally are not entitled to immediate appeal from orders denying defenses to liability. See, e.g., Will, 546 U.S. at 353-354; Swint, 514 U.S.

at 43. Although a contractor who successfully appeals

the denial of its Yearsley defense following a final judgment “will have been put to unnecessary trouble and ex-

23

pense” of a trial, “this Court has declined to find the costs

associated with unnecessary litigation to be enough to

warrant allowing the immediate appeal of a pretrial order.” Lauro Lines, 490 U.S. at 499.

5. Petitioner’s analogy to qualified immunity is inapt

a. Petitioner’s contrary view principally relies (Br.

21-24) on an analogy to qualified immunity and on this

Court’s holding in Filarsky that private individuals

“acting on behalf of the government” may be entitled to

qualified immunity in damages suits under 42 U.S.C.

1983. 566 U.S. at 390; see id. at 383-392. That reliance

is misplaced. The very existence of qualified immunity

as a separate limit on potential liability underscores

that persons who act on the government’s behalf do not

automatically share (a derivative version of ) the government’s own immunity from suit. See CampbellEwald, 577 U.S. at 166; cf. Restatement vol. 1, § 217 &

cmt. b, at 468-470. And the analogy is flawed even on

its own terms.

Under qualified immunity, even where “the plaintiff ’s claim * * * in fact has merit,” the defendant is

entitled to have the suit dismissed unless his conduct

violated a “ ‘clearly established’ ” right. Camreta v.

Greene, 563 U.S. 692, 705 (2011) (citation omitted). Like

other forms of immunity, therefore, a valid invocation of

qualified immunity permits a defendant to avoid suit

even when he acts unlawfully. In contrast, when a contractor acts within the bounds of lawfully conferred governmental authority, he necessarily acts lawfully. See

Yearsley, 309 U.S. at 21. “Derivative sovereign immunity” is thus different in kind from qualified (or other)

immunity.

In addition, the rationales for qualified immunity do

not apply to the Yearsley defense. By precluding liabil-

24

ity unless the governing law was clearly established,

qualified immunity serves “the government interest in

avoiding ‘unwarranted timidity’ on the part of those engaged in the public’s business.” Filarsky, 566 U.S. at

390 (citation omitted). And extending that immunity to

individuals “acting on behalf of the government similarly serves to ‘ensure that talented candidates are not

deterred by the threat of damages suits from entering

public service.’ ” Ibid. (brackets and citations omitted).

The Yearsley defense, in contrast, extends only to the

bounds of lawfully conferred authority—whether or not

those bounds are clearly established. Accordingly, it

does not alleviate timidity on contractors’ part to the

same degree. And any concerns about deterring public

service are mitigated by contractors’ potential ability to

price litigation risks into their contracts. Cf. Richardson, 521 U.S. at 409 (“[T]he most important special government immunity-producing concern—unwarranted

timidity—is less likely present, or at least is not special,

when a private company subject to competitive market

pressures operates a prison.”).

The analogy to qualified immunity is especially inapposite in the prison context. Unlike private individuals

performing law-enforcement functions on the government’s behalf, cf. Filarsky, 566 U.S. at 387-389, employees of a privately run prison facility are not entitled to

qualified immunity, even though analogous employees

of public prisons are. Richardson, 521 U.S. at 410-411;

cf. Procunier v. Navarette, 434 U.S. 555 (1978). And the

prison itself would not be entitled to qualified immunity,

which generally is available only to individuals. See

Richardson, 521 U.S. at 409; cf. Owen v. City of Independence, 445 U.S. 622, 638 (1980). Treating peti-

25

tioner’s Yearsley defense as if it were a qualified immunity from suit would undercut those limitations.

Finally, even orders denying qualified immunity are

not collateral orders when they turn on factual disputes.

Johnson, 515 U.S. at 316-317. Orders denying Yearsley

defenses, as a class, are likely to be fact-intensive. The

defense requires the contractor to have acted within the

bounds of lawfully delegated governmental authority.

Yearsley, 309 U.S. at 21-22. That inquiry often might

involve resolving factual disputes about exactly what

the government’s instructions were and whether the

contractor in fact followed them. This case illustrates

the point: the parties’ dispute about whether the Yearsley defense applies may turn on whether a detainee’s

“living area” includes common areas used by others,

and whether petitioner’s contract with ICE prohibits it

from paying detainee participants in the voluntary work

program more than $1 per day. See Pet. App. 70a-73a,

75a-78a.

b. Petitioner errs in relying (Br. 15-20) on snippets

from various cases that describe the Yearsley defense

in language that might, in isolation, evoke an immunity

from suit akin to that secured by a successful invocation

of qualified immunity. For example, petitioner reads

(Br. 18-19) the statement in Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1855), that

a government agent “cannot be made responsible in a

judicial tribunal for obeying the lawful command of the

government,” id. at 283 (emphasis added), as describing

“an immunity from suit,” Pet. Br. 19. But the very sentence containing the italicized phrase seems to draw a

distinction between “cannot be made responsible” and

“cannot be sued”: “[The agent] cannot be made responsible in a judicial tribunal for obeying the lawful com-

26

mand of the government; and the government itself,

which gave the command, cannot be sued without its

own consent.” Murray’s Lessee, 18 How. at 283. In context, therefore, “made responsible” is best read to mean

“held liable,” not “made to suffer suit.”

In Brady, the Court cited Yearsley as holding that

“government contractors obtain certain immunity”

when performing work under government contracts.

317 U.S. at 583. The Court in Brady also observed, however, that in Yearsley the government had “validly conferred” authority to take the actions at issue. Ibid. (citation omitted). Brady’s passing use of “immunity”

thus appears to reflect a more colloquial use of the term.

Cf. 2 Restatement (Third) of Agency § 7.01, at 136 (2006)

(noting that courts sometimes imprecisely “use ‘immunity’ language interchangeably with ‘privilege’ in the context of an agent’s individual liability for tortious interference”). And Campbell-Ewald, which also used “immunity,” simply quoted and echoed the use of that term

in Brady and the contractor’s own brief. 577 U.S. at

166.

At all events, those cases neither addressed nor depended on the difference between an immunity from

suit and a defense to liability, and appellate jurisdiction

was not in question. Petitioner thus overreads the stray

references to “immunity” in those cases. This Court has

repeatedly cautioned against overreading stray language in prior opinions in such a manner, including with

respect to jurisdictional issues. See, e.g., Wilkins v.

United States, 598 U.S. 152, 159-160 (2023); Thryv, Inc.

v. Click-To-Call Technologies, LP, 590 U.S. 45, 59 (2020).

Indeed, in Hollywood Motor Car, the Court applied that

principle in the collateral-order context, explaining that

language in a prior opinion describing the asserted

27

right as one “not to be haled into court at all” should not

be taken to mean that the right described an immunity

from suit for purposes of the third Cohen condition. 458

U.S. at 268 (citation omitted). Just so here.

C. Orders Denying “Derivative Sovereign Immunity” Do

Not Satisfy The Other Collateral-Order Requirements,

But This Court Need Not Rule On Those Grounds

Orders denying Yearsley defenses, as a class, also do

not satisfy the first or second Cohen conditions (conclusiveness and separateness from the merits), though the

Court need not reach either issue.

1. The court of appeals held that the order denying

petitioner’s Yearsley defense failed the second Cohen

condition because it did not “resolve an important issue

completely separate from the merits of the action,”

Will, 546 U.S. at 349 (citation omitted). See Pet. App.

17a-29a. The court’s reasoning is sound; whether a defendant is entitled to “derivative sovereign immunity”

often will be coterminous with the merits of the action

because that defense applies only where and to the extent that the defendant acted lawfully—not, as with the

sorts of true immunities discussed above, even where

the defendant acted unlawfully. See Resp. Br. 39-42.

Nevertheless, this Court need not resolve whether

orders denying Yearsley defenses fail the second Cohen

condition. That condition is somewhat more complicated because the rule it sets forth is not absolute, as

this Court has recognized. See Mitchell, 472 U.S. at

527-529. Many categories of pretrial orders are collateral orders even though they resolve issues that cannot

fairly be said to be completely separate from the merits.

They include, for instance, certain denials of qualified

immunity, see ibid.; denials of foreign sovereign immunity under the Foreign Sovereign Immunities Act of

28

1976, cf. Helmerich & Payne, 581 U.S. at 185; Beaty,

556 U.S. at 854; and denials of presidential immunity

from criminal process, see Trump, 603 U.S. at 635-637.

In those and in other cases “where trial itself threatens

certain constitutional interests,” the Court has “treated

the trial court’s resolution of the issue as a ‘final decision’ for purposes of appellate jurisdiction” notwithstanding some overlap with the merits. Id. at 654 (Barrett, J., concurring in part); cf. Mitchell, 472 U.S. at 527

(using “conceptually distinct from the merits” rather

than “completely separate” to describe the second Cohen condition).

Here, of course, a trial would not threaten any constitutional interests because the Yearsley defense is

neither constitutional—Congress could abrogate (or expand) it by statute—nor an immunity against standing

trial. But as explained above, those features also mean

that the district court’s order fails the third Cohen condition. That is sufficient to resolve this case; and such a

resolution would avoid having to address the more complicated question of exactly how much overlap with the

merits (and under what circumstances) the second Cohen condition tolerates. Cf. Pet. Br. 34-40.

2. Orders rejecting a Yearsley defense also, as a

class, do not satisfy the first Cohen condition because

they often will not “conclusively determine the disputed

question,” Will, 546 U.S. at 349 (citation omitted). In

particular, where the defense’s availability turns on disputed facts, the order will generally just defer final resolution of the defense until trial. And because that defense relies both on the government’s actual instructions and on whether the contractor in fact complied

with those instructions, orders rejecting the defense

may not infrequently be based on such factual disputes,

29

as this case illustrates. That said, because the parties

here have not joined issue as to the first Cohen condition, see Pet. App. 18a n.5, the Court need not address

that requirement if it affirms under the third Cohen

condition, as the government urges.

D. Courts Should Address Petitioner’s Valid Concerns

Through Other Avenues

1. Petitioner overstates (Br. 44-50) the potential

ramifications of a holding that orders denying Yearsley

defenses are not collateral orders. The government is

unaware of any empirical basis to conclude that district

courts routinely deny meritorious derivative-sovereignimmunity claims. To the contrary, none of the appellate

decisions cited in the petition as having permitted appeal of pretrial orders denying such claims found the

claims to be meritorious, indicating that immediate appeal is likely to increase costs and decrease litigation

efficiency. See Posada v. Cultural Care, Inc., 66 F.4th

348, 363 (1st Cir. 2023); In re World Trade Center Disaster Site Litigation, 521 F.3d 169, 198 (2d Cir. 2008)

(“Stafford Act immunity”); McMahon v. Presidential

Airways, Inc., 502 F.3d 1331, 1343, 1356 (11th Cir. 2007)

(“derivative Feres immunity”); cf. ACT, Inc. v. Worldwide Interactive Network, Inc., 46 F.4th 489, 507-509

(6th Cir. 2022) (state contractor’s immunity).

The government also is unaware of reluctance on the

part of contractors to work with the government in circuits that do not treat pretrial orders denying Yearsley

defenses as collateral orders. Any effect the availability

of immediate appellate review might have on ex ante incentives to contract with the government likely is less

significant than the fact that contractors can generally

press a Yearsley defense at some point. Cf. Mohawk,

558 U.S. at 109 (observing that “deferring review until

30

final judgment does not meaningfully reduce the ex ante

incentives” associated with the claimed right). And that

defense itself seems to be less important and less successful than stronger applicable defenses, such as intragovernmental immunity and preemption. Cf. Nwauzor

v. GEO Group, Inc., 127 F.4th 750, 783 & n.14 (9th Cir.

2025) (Bennett, J., dissenting) (opining that petitioner

should have prevailed on as-applied Supremacy Clause

and preemption arguments, but not addressing “derivative sovereign immunity”). Indeed, although petitioner has been a defendant in dozens of reported federal appellate cases, this case and Nwauzor appear to

be the only two involving the Yearsley defense.

2. That said, although orders denying the Yearsley

defense, as a class, do not satisfy the conditions for

collateral-order review, they may be important enough

to warrant interlocutory review in particular circumstances. The federal government relies heavily on contractors to support a variety of vital government functions. That is (and has long been) especially apparent

in the prison context. The First Congress adopted joint

resolutions recommending that States enact laws “making it expressly the duty of the keepers of their gaols, to

receive and safe keep therein” federal prisoners in exchange for 50 cents per month per prisoner, Resolution

No. 2, 1st Cong., 1st Sess., 1 Stat. 96 (Sept. 23, 1789),

and authorizing federal marshals to “hire a convenient

place to serve as a temporary jail” in the meantime,

Resolution No. 5, 1st Cong., 3d Sess., 1 Stat. 225 (Mar.

3, 1791). See Randolph v. Donaldson, 9 Cranch 76, 86

(1815) (Story, J.).

In more modern times, a commission appointed by

President Reagan concluded that “[c]ontracting appears to be an effective method for the management and

31

operation of prisons and jails at any level of government,” and “encouraged” the Immigration and Naturalization Service in particular “to continue to experiment

and to evaluate the cost and effectiveness of contracting

its detention facilities.” President’s Commission on Privatization, Privatization: Toward More Effective Government 149, 153 (Mar. 1988). Congress has since expressly recognized the need for contracting immigration detention facilities. See 6 U.S.C. 112(b)(2); 8 U.S.C.

1231(g). And this Office has been informed that today,

all of ICE’s immigration detention facilities are owned

or operated by private contractors.

Lawsuits that threaten to impose massive liability on

contractors thus risk erecting a substantial obstacle to

federal governmental objectives, especially with respect to immigration enforcement. Cf. Nwauzor v.

GEO Group, Inc., 146 F.4th 1280, 1289 (9th Cir. 2025)

(Bumatay, J., dissenting from the denial of rehearing en

banc). In addition, although the “unnecessary trouble

and expense” of a trial is insufficient to satisfy the

collateral-order doctrine, Lauro Lines, 490 U.S. at 499,

those costs ultimately are likely to be passed on to the

government (and thus the taxpayers) in the form of

higher contracting costs. And while this case has proceeded relatively straightforwardly, some suits involving a Yearsley defense might impose significant discovery burdens on the government, potentially implicating

sensitive confidential or even classified information. Cf.

Al Shimari v. CACI Premier Technology, Inc., 775 Fed.

Appx. 758 (4th Cir. 2019), cert. denied, 141 S. Ct. 2850

(2021).

Accordingly, interlocutory appeal of orders denying

a Yearsley defense may well be warranted under 28

U.S.C. 1292(b), which authorizes district courts to cer-

32

tify an order for interlocutory appeal when it “involves

a controlling question of law as to which there is substantial ground for difference of opinion” and “immediate appeal from the order may materially advance the

ultimate termination of the litigation.” As the Fifth Circuit has observed in a related context, the concerns set

forth above make it important for district courts to

“freely certify[] orders denying” dispositive motions for

interlocutory appeal under Section 1292(b) “where the

law is unsettled but, after refinement on appeal, might

warrant dismissing plaintiffs’ claims.” Martin v. Halliburton, 618 F.3d 476, 488 (2010). For instance, the government generally opposes the potential imposition of

state-law liability on federal immigration detention contractors for paying detainees in voluntary work programs $1 per day. See, e.g., Nwauzor, supra. And the

scope of the federal forced-labor statute in this context

also is unsettled. Cf. Owino v. CoreCivic, Inc., 60 F.4th

437, 454 (9th Cir. 2022) (VanDyke, J., dissenting from

denial of rehearing en banc), cert. denied, 143 S. Ct.

2612 (2023).

3. In addition, Congress has authorized this Court

to prescribe rules “to provide for an appeal of an interlocutory decision.” 28 U.S.C. 1292(e). For example, following the decision in Coopers & Lybrand, supra, this

Court promulgated a rule permitting appeal, when certified, from interlocutory orders “granting or denying

class-action certification.” Fed. R. Civ. P. 23(f ). Federal contractors, like any member of the public, may

submit proposals to the Rules Advisory Committee to

authorize interlocutory appeal from orders denying

Yearsley defenses.

This Court has repeatedly refused “to expand the

‘small class’ of collaterally appealable orders,” Will, 546

33

U.S. at 350, in part because “Congress’ designation of

the rulemaking process as the way to define or refine

when a district court ruling is ‘final’ and when an interlocutory order is appealable warrants the Judiciary’s

full respect,” Swint, 514 U.S. at 48. Such rulemaking

“draws on the collective experience of bench and bar”

and “facilitates the adoption of measured, practical solutions.” Mohawk, 558 U.S. at 114. Accordingly, “rulemaking, ‘not expansion by court decision,’ [i]s the preferred means for determining whether and when prejudgment orders should be immediately appealable.”

Id. at 113 (citation omitted).

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

BRETT A. SHUMATE

Assistant Attorney General

SARAH M. HARRIS

Deputy Solicitor General

SOPAN JOSHI

Assistant to the

Solicitor General

MICHAEL S. RAAB

ASHLEY C. HONOLD

Attorneys

SEPTEMBER 2025