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

Supreme Court briefOct 15, 2025

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No. 24-758

In the Supreme Court of the United States

T HE GEO G ROUP , I NC .,

Petitioner,

A LEJANDRO M ENOCAL , ET AL .,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

REPLY BRIEF FOR PETITIONER

SCOTT A. SCHIPMA

JOSEPH NEGRON, JR.

THE GEO GROUP, INC.

4955 Technology Way

Boca Raton, FL 33431

scott.schipma@geogroup.com

(561) 999-7615

O CTOBER 15, 2025

DOMINIC E. DRAYE

Counsel of Record

WILLIAM E. EYE

CHRISTOPHER M. O’BRIEN

GREENBERG TRAURIG LLP

2101 L Street, N.W.

Washington, DC 20037

drayed@gtlaw.com

(202) 331-3100

TABLE OF CONTENTS

Page(s)

TABLE OF CONTENTS ............................................. i

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

REPLY BRIEF............................................................ 1

I. Derivative Sovereign Immunity Is a

Conditional Immunity from Suit. ................... 3

A. The Common Law Has Long

Recognized an Immunity from Suit

for Obedient Contractors. .......................... 4

B. Respondents’ “Derivative-Privilege”

Theory Is Both Forfeited and Wrong. ...... 13

II. The Denial of Derivative Sovereign

Immunity Satisfies the Cohen Factors. ........ 16

A. The Denial of Derivative Sovereign

Immunity Conclusively Determines

the Disputed Question. ............................ 17

B. The Denial of Derivative Sovereign

Immunity Is Sufficiently Separate

from the Merits......................................... 18

C. The Denial of Derivative Sovereign

Immunity Is Effectively

Unreviewable on Appeal from Final

Judgment. ................................................. 21

D. Respondents’ Parade of Horribles Is

Unfounded. ............................................... 23

CONCLUSION ......................................................... 26

TABLE OF AUTHORITIES

Page(s)

Cases

Adkisson v. Jacobs Eng’g Grp., Inc.,

36 F.4th 686 (6th Cir. 2022) ................................ 24

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) ................................................. 5

Brady v. Roosevelt S.S. Co.,

317 U.S. 575 (1943) ............................... 3, 5, 7, 8, 15

Cabalce v. Thomas E. Blanchard & Assocs.,

797 F.3d 720 (9th Cir. 2015) ............................... 25

Campbell-Ewald v. Gomez,

577 U.S. 153 (2016) (No. 14-857),

2015 WL 5138588 ..................... 1-6, 8, 12, 15, 18, 19

Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541 (1949) ......................... 4, 16, 17, 19, 26

Crowson v. Wash. Cnty.,

983 F.3d 1166 (10th Cir. 2020) ............................ 24

Cunningham v. Gen. Dynamics Corp.,

888 F.3d 640 (4th Cir. 2018) ........................... 19, 20

F. Hoffmann-La-Roche Ltd. v. Empagran S.A.,

542 U.S. 155 (2004) ......................................... 14, 17

Farmer v. Moritsugu,

163 F.3d 610 (D.C. Cir. 1998) ............................... 20

iii

Filarsky v. Delia,

566 U.S. 377 (2012) ................................. 1-3, 10, 11,

12-14, 16, 22-24, 26

Hopkins v. Clemson Agric. Coll. of S.C.,

221 U.S. 636 (1911) ............................................. 7, 9

Johnson v. Jones,

515 U.S. 304 (1995) ............................................... 25

Kawananakoa v. Polyblank,

205 U.S. 349 (1907) ................................................. 9

KBR, Inc. v. Metzgar,

574 U.S. 1120 (2015) ............................................. 12

Keifer & Keifer v. Reconstruction Fin. Corp.,

306 U.S. 381 (1939) ................................................. 7

Knick v. Twp. of Scott,

588 U.S. 180 (2019) ......................................... 4, 5, 8

Lamar v. Browne,

92 U.S. 187 (1875) ................................................... 9

Lewis v. Clarke,

581 U.S. 155 (2017) ................................................. 7

Mathis v. United States,

579 U.S. 500 (2016) ................................................. 8

Mitchell v. Forsyth,

472 U.S. 511 (1985) ...................... 1, 2, 7, 10, 11, 13,

14, 17-19, 21, 23, 25

Murray’s Lessee v. Hoboken Land & Imp. Co.,

59 U.S. 272 (1856) ................................................. 10

Nixon v. Fitzgerald,

457 U.S. 731 (1982) ..................................... 7, 11, 21

Nwauzor v. GEO Grp., Inc.,

146 F.4th 1280 (9th Cir. 2025) ............................ 23

Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc.,

506 U.S. 139 (1993) ................................. 2, 4, 16, 17

Pullman Constr. Indus., Inc. v. United States,

23 F.3d 1166 (7th Cir. 1994) ................................. 16

Richardson v. McKnight,

521 U.S. 399 (1997) ........................................ 22-23

Riggs v. UCOR, LLC,

2024 WL 3634471

(Aug. 2, 2024, 6th Cir. 2024) ............................... 24

Salliotte v. Knight Bridge Co.,

122 F. 378 (6th Cir. 1903) ................................... 8, 9

Sanzone v. Gray,

884 F.3d 736 (7th Cir. 2018) ................................. 20

Sloan Shipyards Corp. v. United States

Shipping Board Emergency Fleet Corp.,

258 U.S. 549 (1922) ............................................. 1, 7

Trump v. United States,

603 U.S. 593 (2024) ............................................... 11

Will v. Hallock,

546 U.S. 345 (2006) ....................................... 21, 23

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

309 U.S. 18 (1940) ..................... 1, 2, 4-13, 15-22, 24

Yousef v. Samantar,

699 F.3d 763 (4th Cir. 2012) ................................. 11

Statutes

U.S. Const., Amend. XI ............................................ 17

28 U.S.C. § 1291 ............................................... 25, 26

28 U.S.C. § 2072(c) ................................................. 25

31 U.S.C. § 1341(a)(1)(B) ........................................ 22

42 U.S.C. § 1983 ....................................................... 20

48 C.F.R. § 31.205–47(b)(2) .................................... 22

Other Authorities

Br. of the U.S., Campbell-Ewald Co. v. Gomez,

577 U.S. 153 (2016) (No. 14-857), 2015 WL

5138588 ................................................................. 15

Br. of the U.S., Childs v. San Diego Family

Housing LLC, 2021 WL 1897312 (9th Cir.

2021) ...................................................................... 16

Br. of the U.S., Filarsky v. Delia, 566 U.S. 377

(2012) (No. 10-1018), 2011 WL 5908946 .............. 12

Br. of the U.S., KBR, Inc. v. Metzgar, 574 U.S.

1120 (2015) ............................................................ 12

Br. of the U.S., Yearsley v. W.A. Ross Constr.

Co., 309 U.S. 18 (1940) (No. 156), 1939 WL

48388 ..................................................................... 12

CVSG Br., CACI Premier Tech., Inc. v. Al

Shimari, No. 19-648 (Aug. 26, 2020) .................... 16

Liable to Action, Black’s Law Dictionary (4th

ed. 1968) .................................................................. 9

Restatement (First) of Agency (1933) ...................... 14

Restatement (Second) of Agency (1958) ............. 14-15

REPLY BRIEF

Respondents’ silence on the precedents that control this case speaks volumes. They never discuss the

holding in Filarsky v. Delia, 566 U.S. 377 (2012), that

extended qualified immunity to individual contractors. They have no response to Mitchell v. Forsyth,

472 U.S. 511 (1985), permitting immediate appeal of

orders denying qualified immunity, apart from suggesting that it was wrongly decided. Resp. Br. 32 n.7.

And, although routinely citing Sloan Shipyards

Corp. v. United States Shipping Board Emergency

Fleet Corp., 258 U.S. 549, 567 (1922), Respondents

omit its common-sense observation that “it cannot

matter that the agent is a corporation rather than a

single man.” Filarsky held that “a single man” obtains derivative immunity; Mitchell permitted immediate appeal of orders denying that immunity; and

Sloan recognized that a corporate contractor is no

different than an individual. Taken together, these

precedents and the long history of cases recognizing

contractors’ immunity when they satisfy the conditions articulated in Yearsley v. W.A. Ross Const. Co,

309 U.S. 18 (1940), resolve the current case.

In lieu of engaging precedent in this common-law

immunity case, Respondents and the Solicitor General attempt to rewrite it. They propose an alternative theory for what this Court and others have been

treating as an immunity for over a century: a “privilege” born in the pages of the Restatement and

shunned in every court to consider it, beginning with

this one in Campbell-Ewald v. Gomez, 577 U.S. 153

(2016). Understanding the government’s pivot from

supporting contractors’ immunity in Yearsley and

Filarsky to opposing it in recent years is difficult, but

spotting the theory’s shortcomings is easy. It repudiates decades of precedent, stretches Restatement

sections limited to tort law, and collides with Mitchell

and the fact that employees are also agents, yet no

one contends that qualified immunity is a mere “privilege.” The government was correct 80 years ago,

when it told this Court it was “obvious” that “a Government agent acting under authority validly conferred by the Government cannot be subjected to

suit on account thereof.” Br. of the U.S. at 20–21,

Yearsley, 1939 WL 48388 (emphasis added).

With immunity clarified, the other pieces of the

puzzle slide into place. The collateral-order analysis

of other immunities, especially qualified immunity,

charts the path for this case and highlights the Tenth

Circuit’s error in denying appellate jurisdiction

based on “overlap” that this Court expressly condoned in Mitchell. Compare Pet. App. 20a with 472

U.S. at 527–528. And, as with any immunity, the

value “is for the most part lost as litigation proceeds

past motion practice.” Puerto Rico Aqueduct & Sewer

Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145

(1993).

“The public interest in ensuring performance of

government duties free from the distractions that

can accompany even routine lawsuits is also implicated when individuals other than permanent government employees discharge these duties.”

Filarsky, 566 U.S. at 391. Sadly, those distractions

are precisely the point of lawsuits like this one that—

across two presidential administrations—aim to use

the courts to thwart policies with which plaintiffs disagree. Derivative sovereign immunity refocuses that

policy debate in the elected branches that control the

sovereign and set its policy. The Court should vindicate the nation’s interest in allowing its elected government to carry out the lawful policies its adopts.

Derivative Sovereign Immunity

Conditional Immunity from Suit.

Call it the Grand Straw Man. Respondents devote most of their argument on derivative sovereign

immunity to attacking a position GEO never asserted

and the Court has already rejected. Page after page

of Respondents’ brief argues that “sovereign immunity belongs to the sovereign alone.” Resp. Br. 21; see

also id. 2–8, 16–17, 21–29. That is correct, and GEO

agrees that contractors do not share “the Government’s embracive immunity.” Campbell-Ewald, 577

U.S. at 166.

‘“[G]overnment contractors” do, however, “obtain

certain immunity in connection with work which

they do pursuant to their contractual undertaking

with the United States.’” Id. at 172 (quoting Brady

v. Roosevelt S.S. Co., 317 U.S. 575, 583 (1943)). Unlike the Government’s “embracive” immunity, contractors’ derivative sovereign immunity is conditional, attaching only if (i) ‘“what was done was

within the constitutional power of Congress,”’ and (ii)

the contractor “performed as the Government directed.” Id. at 167 (quoting Yearsley, 309 U.S. at 20–

21). But like sovereign immunity, derivative sovereign immunity confers immunity “from suit.” Id. at

166; see also Knick v. Twp. of Scott, 588 U.S. 180, 201

n.7 (2019) (“Yearsley was right to hold that the contractors were immune from suit.”).

The Grand Straw Man ignores the immunity that

GEO claims; it dismisses decades of precedent describing contractors’ “immunity from suit” as a mere

colloquialism; and it fails to address other conditional, non-sovereign immunities that protect those

carrying out the government’s work. And despite

never raising the point in the lower courts, Respondents and the Solicitor General propose a revisionist

and procrustean agency-based “privilege” framework

to explain away a century of precedent without citing

a single case endorsing that framework or explaining

how it can coexist with qualified immunity.

Properly understood, the Yearsley doctrine provides immunity from suit for contractors who satisfy

its conditions. And where an immunity is at issue,

“it follows that the elements of the Cohen collateral

order doctrine are satisfied.” Puerto Rico, 506 U.S.

at 144.

A. The Common Law Has Long Recognized

an Immunity from Suit for Obedient

Contractors.

1. For more than a century, the Court has recognized contractors as immune from suit for acts taken

at the government’s behest, so long as they obey

constitutional directions. See Pet. Br. 14–24. While

Yearsley is the canonical formulation of the two conditions for that immunity, the doctrine’s roots are

deeper in history and wider across jurisdictions. Id.

at 16–22. See Volokh Br. at 6–24.

Respondents answer that “Yearsley itself” did not

explicitly confer “a right to avoid suit entirely.” Resp.

Br. 21. That is because the contractor in Yearsley asserted immunity “[a]t the close of evidence” in a “motion[] for directed verdict.” Br. of the U.S., 1939 WL

48388, at *7. In that posture, there was no occasion

for Yearsley to hold that derivative sovereign immunity barred a trial that had already occurred.

The Court’s description was not a fluke, however.

Just three years later it noted that, “of course. . . government contractors obtain certain immunity in

connection with work which they do pursuant to their

contractual undertaking with the United States.”

Brady S.S. Co., 317 U.S. at 583 (emphasis added).

And in subsequent years, the Court has consistently

characterized the Yearsley doctrine as ‘“derivative

immunity’ shield[ing] the contractor from suit.”

Campbell-Ewald, 577 U.S. at 672 (emphasis added);

Knick, 588 U.S. at 201 n.7; see also Boyle v. United

Techs. Corp., 487 U.S. 500, 524 (1988) (Brennan, J.,

dissenting) (“In Yearsley we barred the suit of landowners against a private Government contractor”)

(emphasis added).

2. Rather than grapple with contractors’ conditional immunity from suit, Respondents and their

amici resort to the Grand Straw Man or discount the

Court’s statements as not meaning what they say.

a. Respondents and their amici devote dozens of

pages to the Grand Straw Man, arguing that “those

who work for the government are not themselves sovereign.” Resp. Br. 6; see also id. at 2–8, 16–17, 21–

29; Chemerinsky Br. at 4–9. That has never been

GEO’s argument; indeed, GEO expressly repudiated

it. Pet. Br. 24. To repeat: contractors obtain immunity from suit only if they satisfy the two conditions

articulated in Yearsley. Id. at 23–24. That protection

is less robust than the government’s unconditional

immunity.

In a similar vein, Respondents assert that GEO

presents “virtually the same argument” as the petitioner in Campbell-Ewald. Resp. Br. 25. That is mistaken, and the reason why is informative. In Campbell-Ewald, the contractor concededly flouted the

government’s directions (and the law) by sending text

messages to recipients who had not agreed to receive

them. 577 U.S. at 166. The contractor claimed immunity anyway, which required it to spurn the conditional immunity articulated in Yearsley in favor of

the government’s own, unconditional immunity—exactly the Grand Straw Man. The Court rejected that

position: “Do federal contractors share the Government’s unqualified immunity from liability and litigation? We hold they do not.” Ibid. It instead affirmed the historic conditions for derivative immunity. Id. at 167. GEO accepts those traditional conditions and asks the Court to apply the rule from

Mitchell, Nixon, and others by allowing an immediate appeal of a district court’s order finding the conditions for immunity unmet.

b. The bulk of Respondents’ cited cases simply reject the Grand Straw Man and therefore have no relevance. For instance, Keifer & Keifer v. Reconstruction Fin. Corp., held that a government corporation

and subsidiary were not entitled to sovereign immunity where Congress provided that they could “sue and

be sued.” 306 U.S. 381, 393 (1939); Hopkins v. Clemson Agric. Coll. of S.C., 221 U.S. 636, 647 (1911)

(denying status-based immunity for “a tort [not] committed in the prosecution of any governmental function.”). Likewise, Respondents cite Lewis v. Clarke,

which held that a tribal employee was not entitled to

tribal sovereign immunity for an “individual-capacity

action[].” 581 U.S. 155, 163 (2017). None of these

cases speak to derivative sovereign immunity as articulated in Yearsley.

Respondents and the Solicitor General also rely

heavily on the holdings in Sloan and Brady. Those

cases evaluated whether the United States or its

agent was the proper defendant in certain actions under the Suits in Admiralty Act. See Sloan, 258 U.S.

at 564; Brady, 317 U.S. at 577, 584. That statute is

not at issue in this case. Relevant here, Brady reaffirmed that “[i]t is, of course, true that government

contractors obtain certain immunity in connection

with work which they do pursuant to their contractual undertaking with the United States.” 317 U.S.

at 583 (citing Yearsley). The contractor in Brady

failed to satisfy Yearsley’s conditions, but that failure

does not undermine the rule. Pet. Br. 17

c. Relatedly, Respondents and their amici labor

in vain to explain away the Court’s decisions characterizing derivative sovereign immunity as an immunity from suit. Their attempts take several forms.

First, they insist the Court did not mean what it

said in Brady, Campbell-Ewald, and Knick when it

characterized the Yearsley doctrine as “immunity.”

Resp. Br. 27 (“‘immunity’ is a word of many meanings”); U.S. Br. 26 (describing repeated references to

“immunity” “from suit” as “stray language” and “colloquial”). This flippant response betrays the weakness of their position. See Mathis v. United States,

579 U.S. 500, 514 (2016) (“[A] good rule of thumb for

reading our decisions is that what they say and what

they mean are one and the same.”).

Second, they seize on language describing the

Yearsley doctrine as relieving the contractor of “liability.” See Resp. Br. 26–29; U.S. Br. 25–27. The unspoken premise appears to be that avoidance of liability is the hallmark of a defense. But an immunity

also spares its holder from liability. What matters,

therefore, is why the doctrine defeats liability—does

it undermine an element of the cause of action, or is

it related to the contractor’s service to the government? The parties’ differing approach to Salliotte v.

Knight Bridge Co., 122 F. 378 (6th Cir. 1903), is illustrative. Respondents dismiss this historical example of derivative sovereign immunity because it

found the “contractor entitled to [an] ‘exemption from

liability.’” Resp. Br. 28 (quoting 122 F. at 383). That

language does not illuminate whether the contractor

had a defense or an immunity, but the court’s full

reasoning does. Salliotte held that a contractor executing plans approved by local authorities and the

Secretary of War was “entitled to any exemption from

liability which exists in favor of the supervisors or of

the state itself.” 122 F. at 383 (emphasis added).

That is a derivative immunity, and Respondents err

in assuming that cases discussing liability necessarily repudiate an immunity.

On the merits, Respondents fail to distinguish

more than a century of precedent supporting GEO’s

position. For instance, Yearsley cited Lamar v.

Browne, 92 U.S. 187, 197 (1875), which held the defendants “not liable to suit” because they acted as

agents of the government pursuant to authority validly conferred. See Pet. Br. 19–20. Respondents assert that the phrase “liable to suit” “means ‘liable to

judgment in [a] given action.’” Resp. Br. 28 (citing

Liable to Action, Black’s Law Dictionary (4th ed.

1968)). But that argument relies on the definition of

a different term (“liable to action”) from a dictionary

postdating Lamar by a century. Contemporaneous

decisions of this Court make clear that one who is

“not liable to suit” is “immun[e] from suit.” See Kawananakoa v. Polyblank, 205 U.S. 349, 352 (1907)

(rejecting contention that “the territory of Hawaii is

liable to suit like a municipal corporation” (emphasis added)); Hopkins, 221 U.S. at 644–645 (an officer

who lacks “immunity from suit” is “liable to suit”).

Respondents likewise try to distinguish Murray’s

Lessee—also cited in Yearsley—but cite a passage

that supports contractors’ conditional immunity from

suit: ‘“suit may be brought against the [agent]’ and

‘he may be put to show his justification’ by demonstrating that he was acting under a ‘lawful command

of the government.’” Resp. Br. 28 (citing Murray’s

Lessee v. Hoboken Land & Imp. Co., 59 U.S. 272,

283–285 (1856)). Exactly right: plaintiffs can sue

contractors over work they perform pursuant to federal contracts, at which point the contractor must

“show his justification by demonstrating” Yearsley’s

two conditions. That is why Yearsley cites Murray’s

Lessee. If a contractor makes that showing, it is immune for obeying the government’s “lawful command.”

d. While Respondents quarrel at length with the

Court’s 19th- and early 20th-century jurisprudence,

they essentially ignore its modern precedent supporting GEOs’ position.

Filarsky and Mitchell all but dispose of this case.

The former affirmed contractors’ entitlement to derivative immunity (there, qualified immunity), and

the latter held that orders denying that immunity

are collateral orders. GEO asks the Court to combine

those insights.

Filarsky is a cornerstone of GEO’s case. Pet. Br.

11–12, 22–23, 27; 29–30, 42–48. Respondents never

discuss it. They offer no response to its twin teachings that “the common law did not draw a distinction

between public servants and private individuals

engaged in public service,” and that refusing to confer immunity on contractors would leave them “holding the bag—facing full liability for actions taken in

conjunction with government employees who enjoy

immunity for the same activity.” 566 U.S. at 387,

391; id. at 398 (Sotomayor, J., concurring).

Respondents likewise fail to meaningfully address Mitchell, which held that denials of qualified

immunity are collateral orders. 472 U.S. at 526–527.

Mitchell devastates Respondents’ theory that immediately appealable immunities are found only in “a

statute or in the Constitution.” Resp. Br. 32; U.S. Br.

22. Mitchell disproves that assertion. Like derivative sovereign immunity, qualified immunity is a

common-law immunity. The same is true of the presidential immunity held to be a collateral order in

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

foreign officials’ immunity, Yousef v. Samantar, 699

F.3d 763, 768 n.1 (4th Cir. 2012) (noting that statutory immunity reaches only the state itself). That

leaves Respondents with a half-hearted argument

that Mitchell was wrongly decided. Resp. Br. 32 n.7

(asserting Mitchell was decided “before this Court began to rein in its expansive approach to the collateral-order doctrine”); id. at 44 (similar). The Court,

however, has relied on Mitchell as recently as last

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

3. Prior to a stark about-face, the government had

long agreed that contractors are immune from suit

for acts taken at its behest. Pet. Br. 17–18. Indeed,

the Solicitor General contended in Yearsley that

based on extant caselaw and “as a matter of principle,” it was “obvious” that “a Government agent acting under authority validly conferred by the Government cannot be subjected to suit on account thereof.”

Br. of the U.S., 1939 WL 48388, at 20–21; see also id.

at 19. Likewise, in Filarsky, the Government recognized that “[a]ffording [qualified] immunity” to contractors “promotes the same policy considerations

that animate the doctrine’s application to public officials.” Br. of the U.S. at 15, Filarsky, 2011 WL

5908946. And in its petition-stage brief in KBR, Inc.

v. Metzgar, 574 U.S. 1120 (2015), the Government observed that Yearsley supported “derivative sovereign

immunity” without intimating there was anything

amiss with the doctrine. Br. of the U.S. at 18–19.

As the Court knows, beginning with CampbellEwald, the government pivoted 180 degrees to opposing derivative sovereign immunity. See Part I.B.2

infra. Perhaps the government seeks to guard its

prerogative to defend the constitutionality of congressional directives, which Yearsley’s first condition

implicates. But sooner or later, the courts must pass

on that question in every Yearsley case, whether the

doctrine is labeled an immunity or a privilege. In any

event, the government now derides the doctrine of derivative sovereign immunity as an “oxymoron,” neither acknowledging its previous position nor offering

any justification for the change. U.S. Br. 17; see also

id. at 2.

Ultimately, Respondents and their amici fail to

escape more than a century of precedent conferring

immunity from suit on the government’s obedient

contractors. From the Grand Straw Man to linguistic

games around “liability” and deafening silence on

Mitchell and Filarsky, they fail to blunt the precedential and logical force of extending immunity to those

who carry out the government’s directions.

B. Respondents’

“Derivative-Privilege”

Theory Is Both Forfeited and Wrong.

Respondents and the Solicitor General rewrite

history by advancing a revisionist theory that the Restatement’s principal-agent guidelines animate more

than a century of this Court’s precedent. The theory

is as follows: immunity from suit is a nondelegable

“personal immunity;” in that circumstance, an agent

can derive only a “privilege” from a principal; as a

result, contractors invoking Yearsley cannot derive

immunity for doing what the government instructs.

See Resp. Br. 9, 23–24; U.S. Br. 15–17, 19–23.

That theory has the makings of a great law review

article, but no court—and certainly not this Court—

has ever endorsed it. Indeed, the Court has never

breathed the word “privilege” in a century of precedent discussing immunity for contractors. To the

contrary, the Solicitor General has been advancing

this theory for nearly a decade, and neither this

Court nor any of the circuits have taken the bait. The

effort to rebrand derivative sovereign immunity as a

“derivative privilege” is both forfeited and wrong.

1. Respondents’ derivative-privilege theory fails

at the outset because they never presented it below.

The word “privilege” never appears in their briefs, so

neither the district court nor the Tenth Circuit considered the argument. See Pet. App. 1a–131a. As a

result, the issue is not preserved and should not be

considered for the first time here. F. Hoffmann-LaRoche Ltd. v. Empagran S.A., 542 U.S. 155, 175

(2004) (“The Court of Appeals, however, did not address this argument, and, for that reason, neither

shall we.”).

2. The derivative-privilege theory also fails on

the merits, which explains why this Court and others

have declined to adopt it.

a. The notion that courts have been extending an

agency-based “privilege” rather than an immunity

proves both too much and too little. It proves too

much because, if correct, it would necessarily encompass employees—the paradigmatic agents—but

reams of precedent confirm that qualified immunity

is an immunity from suit, not a mere privilege. The

same is true for contractors. Once again, Mitchell

and Filarsky are Respondents’ undoing.

The theory also proves too little. The cases it cites

almost all involve private principals, and the Restatement sections at the heart of their theory concern only torts. Sections 345, 347, and 353 of the Restatement (First) of Agency all appear under “Topic

3. Torts,” within Chapter 11 “Liability of Agent to

Third Person.” By their own terms, they are limited

to tort liability. See, e.g., Restatement (First) of

Agency § 345 (1933) (“An agent is privileged to do

what otherwise would constitute a tort”). The same

is true of Sections 217 and 343 of the Restatement

(Second) of Agency (1958), which appear in the parallel sections of the Second Restatement. These sections are far too narrow to establish a rule for the

sovereign or its agents that explains their immunity

for the complete range of claims they might face, including, as here, claims other than torts. Moreover,

since 1946, tort claims against the federal government have been governed by statute in the Federal

Tort Claims Act. Neither Respondents nor the Solicitor General offer a justification for expanding the

tort rules to cover all sources of potential liability or

for substituting that novel construct for centuries-old

derivative sovereign immunity.

By failing to account for employees and citing only

tort principles, Respondents’ effort to explain away

derivative sovereign immunity as agency law in immunity clothing comes up short.

b. This argument is not new to the Court. The

Solicitor General advanced the same theory in Campbell-Ewald. See Br. of the U.S. at 27, CampbellEwald, 2015 WL 5138588 (citing same Restatement

comments to argue that immunities are “personal”

and “non-delegable” and “Yearsley did not confer derivative immunity” but instead a “privilege” for contractors to perform otherwise unlawful acts). Instead

of adopting this revisionist theory, the Court reaffirmed that “government contractors obtain certain

immunity”—not privileges—“in connection with

work which they do pursuant to their contractual undertakings with the United States.” 577 U.S. at 166

(emphasis added; quoting Brady, 317 U.S. at 583).

This Court is not alone in rejecting the derivativeprivilege theory. After reversing its longstanding position supporting derivative sovereign immunity, the

government has floated its derivative-privilege theory several times here and in the lower courts. See,

e.g., CVSG Br. 20–23, CACI Premier Tech., Inc. v. Al

Shimari, No. 19-648 (Aug. 26, 2020); Br. of the U.S.,

Childs v. San Diego Family Housing LLC, 2021 WL

1897312, at *14 (9th Cir. 2021). It has failed every

time. Even the circuits holding that Yearsley confers

only a defense as opposed to an immunity from suit

do not rely on Respondents’ derivative-privilege theory. E.g., Pullman Constr. Indus., Inc. v. United

States, 23 F.3d 1166, 1168 (7th Cir. 1994) (denying

the government’s sovereign immunity, meaning that

contractors have nothing to derive) (cited at Resp. Br.

27). The Court should again reject the unprecedented derivative-privilege theory that the Solicitor

General has inexplicably advanced in recent years,

despite taking the correct position in Yearsley and

Filarsky.

II. The

Denial

Derivative

Sovereign

Immunity Satisfies the Cohen Factors.

Because contractors who satisfy Yearsley’s conditions are “immune from suit . . ., it follows that the

elements of the Cohen collateral order doctrine are

satisfied.” Puerto Rico, 506 U.S. at 144. An independent analysis of Cohen’s three prongs confirms

that denials of Yearsley immunity are collateral orders.

A. The Denial of Derivative Sovereign

Immunity Conclusively Determines the

Disputed Question.

An order denying derivative sovereign immunity

conclusively determines the “disputed question”—

i.e., whether the contractor must stand trial. As the

Solicitor General recognizes, Respondents did not

contest this element below. U.S. Br. 29 (“[T]he parties here have not joined issue as to the first Cohen

condition, see Pet. App. 18[.]”); Empagran, 542 U.S.

at 175 (argument forfeited where not presented below).

Respondents nevertheless argue that denials of

Yearsley immunity do not “conclusively resolve the

issue” because “in many cases, interlocutory Yearsley

orders will be able to conclude only that there is a

genuine dispute of fact about whether the government directed the challenged conduct.” Resp. Br. 48.

But in cases where immunity cannot be determined

on uncontested facts, the suit will proceed, meaning

the immunity question has been resolved and the defendant must endure suit. Puerto Rico, 506 U.S. at

145 (holding that denials of Eleventh Amendment

immunity are “conclusive determinations that they

have no right not to be sued in federal court”). It is

of no moment that the contractor can assert immunity later in the proceedings; the same is true following an initial denial of qualified immunity, which is

indisputably a collateral order. Mitchell, 472 U.S. at

527 (noting satisfaction of Cohen’s first prong).

B. The Denial of Derivative Sovereign

Immunity Is Sufficiently Separate from

the Merits.

Orders denying Yearsley immunity are “conceptually distinct” from the merits of the underlying action

and less intertwined than other orders the Court has

recognized as collateral orders. See Pet. Br. 34–40.

Indeed, a denial of absolute immunity, qualified immunity, and double-jeopardy immunity all entail

some consideration of the merits, but the Court has

held that each is a collateral order. See id. at 34–36;

see also Mitchell, 472 U.S. at 528–529.

1. Respondents argue that the Yearsley conditions and the merits are intertwined based on a false

premise that Yearsley asks whether the contractor’s

actions were “legal.” Resp. Br. 39. Respondents repeatedly insist that Yearsley “answers the ultimate

merits questions: What did the contractor do, and

was it legal?” Id. at 45; see also id. at 41 (“[W]hether

a defendant’s conduct was legal is the ultimate merits question in every case.”); id. at 3, 9, 18, 41 (similarly rewriting the Yearsley conditions).

That inquiry is foreign to Yearsley, which instead

asks whether (i) “‘what was done was within the constitutional power of Congress,’” and (ii) the contractor “performed as the Government directed.” Campbell-Ewald, 577 U.S. at 167 (quoting Yearsley, 309

U.S. at 20–21). Nowhere does Yearsley ask whether

the contractor’s alleged actions were “legal.” Indeed,

the essence of an immunity is that the defendant may

have violated the law, but the defendant is not

susceptible to suit. If an “immunity” attached only

when a defendant showed that it did not violate the

law, the immunity would be unnecessary. See Cunningham v. Gen. Dynamics Corp., 888 F.3d 640, 648

(4th Cir. 2018).

2. Orders finding Yearsley’s conditions unmet are

no more enmeshed with the merits than other orders

the Court has found to satisfy Cohen. Evaluating

Yearsley’s first condition requires only that a court

consider whether Congress has the constitutional authority to undertake certain actions. It is strictly legal, based on the allegations in the plaintiff’s complaint, and Respondents offer no reason to think this

inquiry would be fact-bound in any Yearsley case.

Yearsley’s second condition asks whether the contractor “performed as the Government directed.”

Campbell-Ewald, 577 U.S. at 167. To be sure, this

inquiry might entail some factual overlap with the

merits. But the Mitchell Court rejected the argument that “any factual overlap between a collateral

issue and the merits of the plaintiff’s claim is fatal to

a claim of immediate appealability.” 472 U.S. at 529

n.10. The Tenth Circuit’s ruling below is irreconcilable with Mitchell, and neither Respondents nor the

Solicitor General meaningfully defend it.

This case illustrates how the Yearsley inquiry is

“conceptually distinct” from the merits. To determine whether GEO is entitled to immunity, a court

need only consider “given facts:” Respondents’ allegations, the contract between ICE and GEO, and ICE’s

directives. See Pet. Br. 38–39. The district court

considered those facts sufficient; indeed, it not only

denied GEO’s motion for summary judgment but affirmatively granted summary judgment to Respondents on the immunity issue, belying their argument

that the Yearsley inquiry can be resolved only by deciding the underlying merits. See Pet. App. 70a–78a.

To the extent any necessary facts are not apparent

from the complaint, district courts have ample discretion to permit limited discovery on Yearsley’s two

conditions. See, e.g., Cunningham, 888 F.3d at 650

(“[T]he parties participated in 75 days of limited discovery on the applicability of Yearsley[.]”). And if a

fact determination by the court or jury is required,

then the proper course is to deny the defendant’s motion—exactly what occurs in the qualified immunity

context. See, e.g., Sanzone v. Gray, 884 F.3d 736, 739

(7th Cir. 2018) (noting this standard but reversing

because the given facts supported immunity);

Farmer v. Moritsugu, 163 F.3d 610, 613–614 (D.C.

Cir. 1998).

At bottom, Respondents have no answer to the

Court’s serial holdings that denials of immunity are

collateral orders despite some overlap with the merits. Indeed, the denial of qualified immunity is immediately appealable despite often being coterminous with the merits of a claim under 42 U.S.C.

§ 1983 or Bivens. In such cases, a court must assess

what the defendant did and whether it violated a

clearly established right. That is no less distinct

from the merits than deciding whether a contractor’s

actions violated constitutional government directions.

C. The Denial of Derivative Sovereign

Immunity Is Effectively Unreviewable on

Appeal from Final Judgment.

The Court has consistently held that the denial of

immunity from suit is the archetypal order that is

“effectively unreviewable” after final judgment because the immunity’s benefit is effectively lost if not

vindicated before trial. See Pet. Br. 40–41 (collecting

cases). Yearsley immunizes obedient contractors

from suit. See Part I supra. Thus, its denial is effectively unreviewable after final judgment.

Respondents’ primary counterargument hinges

on the Grand Straw Man and their novel derivativeprivilege theory, Resp. Br. 20–31, which are mistaken for the reasons discussed above.

Respondents’ remaining argument turns on the

requirement that collateral orders serve a “value of a

high order.” Will v. Hallock, 546 U.S. 345, 352

(2006). Respondents contend that “[e]ven if Yearsley

could be described as a right to avoid trial,” its denial

is not “important enough” to warrant immediate appeal because it is not “found in a statute or in the

Constitution.” Resp. Br. 32. But neither absolute

immunity nor qualified immunity are “found in a

statute or in the Constitution,” yet denials of both are

collateral orders. See Mitchell, 472 U.S. at 526;

Nixon, 457 U.S. at 742. And the same interests animating Mitchell apply to private contractors: “The

public interest in ensuring performance of government duties free from the distractions that can accompany even routine lawsuits is also implicated

when individuals other than permanent government

employees discharge these duties.” Filarsky, 566

U.S. at 391.

While Respondents assert that the government

has “consistently” expressed a “lack of concern” for

Yearsley denials, the Solicitor General disagrees:

“Lawsuits that threaten to impose massive liability

on contractors thus risk erecting a substantial obstacle to federal governmental objectives.” U.S. Br. 31.

The Solicitor General goes on: “those [litigation] costs

ultimately are likely to be passed on to the government (and thus the taxpayers) in the form of higher

contracting costs.” Ibid. Far from evincing a “lack of

concern,” the Solicitor General characterizes contractors’ immunity as “unquestionably important.” Id. at

21.

Respondents downplay the consequences of their

position because, they assert, federal contractors can

simply “buy insurance” or “price litigation risks into

their contracts.” Resp. Br. 34. But federal law limits

a contractor’s ability to do so. For instance, the AntiDeficiency Act precludes the federal government

from indemnifying unknown contract-related costs

and liabilities. 31 U.S.C. § 1341(a)(1)(B); see also

Amicus Br. for CCSGP at 22–24. Moreover, Federal

Acquisition Regulations severely limit a contractor’s

ability to price future litigation into a bid. 48 C.F.R.

§ 31.205–47(b)(2).

Beyond monetary cost, a key concern in Filarsky

was the effect of litigation on the performance of government work. 566 U.S. at 389–390; see Richardson

v. McKnight, 521 U.S. 399, 419 (1997) (Scalia, J., dissenting) (noting that contractors are more vulnerable

to timidity because lawsuits threaten their profitability). Not only does the threat of litigation drive

potential contractors out of the marketplace, but it

forces the government to adjust its policies. That occurred recently in a case similar to this one, in which

the district court denied derivative sovereign immunity, and ICE suspended its Voluntary Work Program

because the cost to GEO was prohibitive. See Nwauzor v. GEO Grp., Inc., 146 F.4th 1280, 1292 (9th Cir.

2025) (Bumatay, J., dissenting from denial of rehearing en banc). The disruption to federal policy caused

by increased costs for contractors is more than simply

monetary.

At bottom, Respondents fail to rebut the combined

force of Mitchell and Filarsky. This case asks

whether a contractor claiming derivative immunity,

as in Filarsky, has the same right to immediate appeal that government employees have when they are

doing the government’s work, as in Mitchell. Respondents give no reason that a different rule should

apply when the same interests are at stake.

D. Respondents’ Parade of Horribles Is

Unfounded.

The collateral-order doctrine governs “a narrow

class of decisions that do not terminate the litigation,

but are sufficiently important and collateral to the

merits that they should nonetheless be treated as final.” Will, 546 U.S. at 347 (quotation omitted). Respondents hypothesize that treating denials of

contractors’ immunity like those denying employees’

immunity will result in a flood of fact-intensive appeals. Resp. Br. 4, 18. Speculation is unnecessary,

however, when data from the circuits that permit collateral-order appeals show barely a trickle of cases.

As noted in the Petition for Certiorari, three circuits permit immediate appeal of orders denying a

contractor’s claim to immunity. Pet. 12–14. In the

Second and Eleventh Circuits, not a single case has

arisen since they allowed collateral-order review in

2008 and 2007, respectively. In the Sixth Circuit, a

grand total of two cases have presented the issue.

Riggs v. UCOR, LLC, 2024 WL 3634471 (Aug. 2,

2024, 6th Cir. 2024); Adkisson v. Jacobs Eng’g Grp.,

Inc., 36 F.4th 686, 690 (6th Cir. 2022). That works

out to roughly seven cases per circuit per century.

The floodgates are secure.

The same pattern followed this Court’s holding in

Filarsky. Since that decision 13 years ago, the circuit

courts have heard only 11 collateral-order appeals of

orders denying individual contractors’ immunity under Filarsky. That number includes circuits like the

Tenth Circuit that do not allow immediate appeal of

orders denying corporate contractors’ immunity under Yearsley. E.g., Crowson v. Wash. Cnty., 983 F.3d

1166 (10th Cir. 2020).

There is simply no basis for the suggestion that

treating Yearsley like other immunities will overwhelm the courts or create an intolerable exception

to the final judgment rule. If anything, the availability of collateral-order review should discourage

frivolous suits like this one that seek only to hamstring contractors’ performance of the government’s

work.

Additionally, there is no reason to fear that these

cases will be fact-intensive. To the contrary, a defendant’s entitlement to immunity turns on “given

facts.” Johnson, 515 U.S. at 311; see Part II.B.2 supra. If the defendant cannot establish an entitlement

to immunity based on “the facts alleged,” Mitchell,

472 U.S. at 528 n.9, then the motion should be denied. Once again, this case is illustrative: the district

court considered only the allegations in the complaint, GEO’s contract with ICE, and the incorporated regulations. On the basis of those given facts,

the court denied GEO’s motion for summary judgment and granted Respondents’ motion. The court’s

error was strictly legal in following the Ninth Circuit’s rule in Cabalce v. Thomas E. Blanchard & Assocs., 797 F.3d 720 (9th Cir. 2015), and GEO asked

the Tenth Circuit to join the three other circuits that

have rejected that narrow test. Pet. Br. 9. Far from

fact-intensive, determining the legal standard is, by

definition, “purely legal.” Mitchell, 472 U.S. at 530.

Finally, Respondents suggest (again, for the first

time) that the Court must use 28 U.S.C. § 2072(c) to

promulgate rules for collateral-order review. Resp.

Br. 13. The statute, of course, says no such thing. To

the contrary, it provides that the Court “may” declare

certain rulings final for purposes of 28 U.S.C. § 1291.

That permissive language does not require the Court

to replace its collateral-order jurisprudence with

rules. If anything, it confirms Congress’s understanding that the final-judgment rule in Section 1291

does not mean “final” and ratifies the Court’s “practical” construction of Section 1291. Cohen, 337 U.S.

at 546. That practicality favors immediate appeal for

contractors whom the common law has never distinguished them from their government counterparts.

Filarsky, 566 U.S. at 387.

CONCLUSION

The Court should reverse the decision below.

Respectfully submitted.