Geo Group, Inc. v. Menocal

P R E L I M I N A R Y P R I N T
Volume 607 U. S. Part 2
Pages 438–464
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
February 25, 2026
REBECCA A. WOMELDORF
reporter of decisions
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the bound volume is published. Users are requested to notify the Reporter
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438 OCTOBER
TERM, 2025
Syllabus
GEO GROUP, INC. v. MENOCAL et al.
certiorari
to the united states court of appeals for
the tenth circuit
No. 24–758. Argued November 10, 2025—Decided February 25, 2026
Petitioner GEO Group operates a private detention facility in Aurora, Col-
orado, under a contract with U. S. Immigration and Customs Enforce-
ment (ICE). Respondent Alejandro Menocal, a former detainee at the
Aurora facility, initiated this class action, alleging GEO's work policies
for detainees violate a federal bar on forced labor and Colorado's prohi-
bition on unjust enrichment. GEO responded that the suit must be
dismissed under Yearsley v. W. A. Ross Constr. Co., 309 U. S. 18, which
held that a federal contractor cannot be held liable for conduct that the
Government has lawfully “authorized and directed” the contractor to
perform. Id., at 20–21. GEO argued that ICE had authorized and di-
rected it to carry out the challenged labor policies. But the District
Court did not read GEO's contract with the Government to instruct
GEO to adopt those policies. The District Court thus concluded that
the Yearsley doctrine did not relieve GEO of legal responsibility and a
trial would be necessary. GEO immediately fled an appeal, which the
Court of Appeals for the Tenth Circuit dismissed for lack of jurisdiction,
holding that an order denying Yearsley protection does not qualify for
interlocutory review under Cohen v. Benefcial Industrial Loan Corp.,
337 U. S. 541.
Held: Because Yearsley provides federal contractors a potential merits
defense rather than an immunity from suit, a pretrial order denying
Yearsley protection is not immediately appealable. Pp. 443–452.
(a) The courts of appeals have jurisdiction over appeals from “fnal
decisions of the district courts.” 28 U. S. C. § 1291. A decision gener-
ally is “fnal” only when it “resolves the entire case”—when it “ends the
litigation” on the merits or otherwise. Ritzen Group, Inc. v. Jackson
Masonry, LLC, 589 U. S. 35, 37–38. That fnal-judgment rule, by pre-
venting piecemeal appeals, “promotes the effcient administration of jus-
tice” and “preserves the proper balance between trial and appellate
courts.” Microsoft Corp. v. Baker, 582 U. S. 23, 36–37.
Under the collateral-order doctrine, however, a “small class” of deci-
sions are treated as “fnal”—and thus immediately appealable—even
though they do not end a case. Cohen, 337 U. S., at 546. To get imme-
diate review, a prejudgment order must satisfy the three conditions this
Court has “distilled” from Cohen. Will v. Hallock, 546 U. S. 345, 349.

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439
Syllabus
The order 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 fnal judg-
ment.” Van Cauwenberghe v. Biard, 486 U. S. 517, 522.
Whether the denial of a pretrial request to dismiss a case like the one
here can satisfy Cohen's third condition will generally turn on whether
the defendant has asserted a defense to liability or instead an immunity
from suit. A party asserting a merits defense advances some reason
why his conduct was not unlawful and he should not be found liable.
But a party asserting an immunity need not challenge the merits of the
charge against him: his claim of immunity does not turn on his conduct's
legality. That difference entails another. Because it ensures a defend-
ant need not “answer for his conduct” in court at all, an immunity is in
its “essence” an “entitlement not to stand trial.” Mitchell v. Forsyth,
472 U. S. 511, 525–526. A liability defense, by contrast, does not allow
the defendant to escape legal proceedings, because it is through them
that the asserted defense is addressed and liability fnally determined.
And that divergence matters for Cohen's third condition, which requires
that the order involve a right that “would be irretrievably lost absent
an immediate appeal.” Van Cauwenberghe, 486 U. S., at 524. The
right not to stand trial is irretrievably lost once trial occurs, but the
right to a fnding of non-liability can be effectively vindicated after trial,
through reversal of an adverse fnal judgment. So, if a defendant as-
serts a liability defense, Cohen is likely to block an immediate appeal; if
he asserts an immunity, Cohen will likely allow it. Pp. 443–447.
(b) Does Yearsley offer federal contractors a merits defense or in-
stead an immunity? Menocal says a defense, because Yearsley gives
contractors only a way to show that their conduct complied with the
law. GEO says an immunity—more specifcally, “derivative sovereign
immunity”—where the Government's own immunity extends to contrac-
tors who meet specifed conditions. Brief for GEO 15.
Yearsley provides a potential defense to liability, not an immunity
from suit. In Yearsley, the Court held that a contractor that had
fooded the Yearsleys' property while performing work “authorized and
directed by the Government” was not liable to the landowner. 309
U. S., at 20. The Court explained that a contractor acting as an agent
of the Government could be held liable for injurious conduct in only two
circumstances: when “he exceeded his authority” or when that authority
“was not validly conferred.” Id., at 21. The Court found neither cir-
cumstance obtained in Yearsley, because the contractor received a law-
ful authorization and stayed within the bounds of the authority given.
That reasoning describes a defense, not an immunity: Yearsley's protec-
tion runs out when the contractor may have violated the law—when the

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440 GEO
GROUP, INC. v. MENOCAL
Syllabus
contractor either acted under an illegal authorization or exceeded the
scope
of a legal one. Yearsley thus ensures that it will never shield
unlawful conduct, in the way that all immunities do.
GEO's contrary view—that it enjoys “derivative sovereign immu-
nity”—would put Yearsley in confict with the general rule that sover-
eign immunity is not transferrable to government agents. The Court
has repeatedly held that the Government's immunity from suit “does
not extend to those that act[ ] in its name,” Sloan Shipyards Corp. v.
United States Shipping Bd. Emergency Fleet Corporation, 258 U. S.
549, 568, or do its work, Keifer & Keifer v. Reconstruction Finance
Corporation, 306 U. S. 381, 388, including by “reason of a contract” with
the Government, Brady v. Roosevelt S. S. Co., 317 U. S. 575, 583; see
also Hopkins v. Clemson, 221 U. S. 636, 642–643. The whole thrust of
those decisions is to deny that government agents can assert—whether
always or sometimes—a “derived” form of sovereign immunity. Instead,
sovereign immunity belongs alone to the Government. Pp. 447–451.
(c) Once Yearsley is properly understood as a merits defense, the
question before the Court almost answers itself. Like the denial of
other defenses, a district court's denial of Yearsley protection is not
immediately appealable under § 1291. Such a ruling is not, as Cohen's
third condition demands, “effectively unreviewable on appeal from a
fnal judgment.” Van Cauwenberghe, 486 U. S., at 522. The right that
a merits defense affords is to a fnding of non-liability. And that right—
unlike the right not to stand trial—is fully vindicable on appeal from a
fnal judgment. Accordingly, the fnality rule of § 1291 precludes inter-
locutory review of a Yearsley denial. Pp. 451–452.
Affrmed and remanded.
Kagan, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Sotomayor, Gorsuch, Kavanaugh, Barrett, and Jackson, JJ.,
joined, and in which Thomas, J., joined as to Parts I and III. Thomas,
J., fled an opinion concurring in part and concurring in the judgment, post,
p. 452. Alito, J., fled an opinion concurring in the judgment, post, p. 453.
Dominic E. Draye argued the cause for petitioner. With
him on the briefs were William E. Eye, Scott A. Schipma,
and Joseph Negron, Jr.
Jennifer D. Bennett argued the cause for respondents.
With her on the brief were Jessica Garland, Deepak Gupta,
Gregory A. Beck, and Thomas Scott-Railton.
Sopan Joshi argued the cause for the United States as
amicus curiae urging affrmance. With him on the brief

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441
Opinion of the Court
were Solicitor General Sauer, Assistant Attorney General
Shum
ate, Deputy Solicitor General Harris, Michael S.
Raab, and Ashley C. Honold.*
Justice Kagan delivered the opinion of the Court.
In Yearsley v. W. A. Ross Constr. Co., 309 U. S. 18, 20
(1940), this Court held that a federal contractor cannot be
held liable for conduct that the Government has lawfully “au-
thorized and directed” the contractor to perform. Rather,
liability may attach only if the authorization was unlawful or
if the contractor acted outside its scope. See id., at 20–21.
The question here is whether a contractor may take an
immediate appeal of a district court's pretrial order denying
Yearsley protection. The answer is no. Because Yearsley
provides a defense to liability, not an immunity from suit, an
order denying its protection can be effectively reviewed
after a fnal judgment. So appellate review of such an
order, as of most pretrial rulings, must await completion of
the district court's proceedings.
*Briefs of amici curiae urging reversal were fled for the Chamber of
Commerce of the United States of America by Michael R. Huston, Shae
McPhee, Jonathan D. Urick, and Nicholas S. Crown; for the Coalition
for Common Sense in Government Procurement by Nicole Saharsky and
Charles A. Rothfeld; for MVM, Inc., by Paul J. Fraidenburgh, Alexander
P. Carroll, and Anne M. Voigts; for the Nevada Hospital Association by
Hugh C. Griffn; for the Professional Services Council—The Voice of the
Government Services Industry by Daniel L. Russell, Jr., and Raymond
B. Biagini; and for Alexander Volokh, pro se.
Briefs of amici curiae urging affrmance were fled for the American
Association for Justice by Robert S. Peck, Bruce Plaxen, and Jeffrey R.
White; for Citizens for Responsibility and Ethics in Washington by Jona-
than Maier and Donald K. Sherman; for Public Citizen by Nandan M.
Joshi, Scott L. Nelson, and Allison M. Zieve; for the Roderick and Solange
MacArthur Justice Center et al. by Amit Jain, Ellen Noble, Anya Bidwell,
and Patrick Jaicomo; and for Erwin Chemerinsky by Steven A. Hirsch
and Anne Bloom.
Georgina Yeomans, Teague Paterson, and Matthew Stark Blumin fled
a brief of amicus curiae for the American Federation of State, County
and Municipal Employees.
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442 GEO
GROUP, INC. v. MENOCAL
Opinion of the Court
I
P
etitioner GEO Group operates a private detention facility
in Aurora, Colorado, under a contract with U. S. Immigration
and Customs Enforcement (ICE). The facility holds individ-
uals whose immigration proceedings are pending. Respond-
ent Alejandro Menocal was detained there in 2014. Soon
afterward, he initiated this class action on behalf of the Au-
rora facility's detainees.
The suit challenges two policies GEO used to put the de-
tainees to work, thereby reducing its own labor costs.
First, the so-called Sanitation Policy required detainees to
clean, without any pay, all the facility's common areas. A
detainee's failure to perform his assigned tasks led to esca-
lating sanctions, up to 72 hours in solitary confnement.
Second, the so-called Voluntary Work Program offered $1
per day to detainees for other kinds of needed work, such
as preparing food and doing laundry. Menocal's complaint
alleged that the former policy violated a federal bar on
forced labor and that the latter breached Colorado's prohibi-
tion on unjust enrichment.
Following discovery, the District Court addressed GEO's
contention that Yearsley required the suit's dismissal. That
was so, the argument ran, because ICE had by contract “au-
thorized and directed” GEO to carry out the two challenged
policies. Defendant's Cross-Motion for Summary Judgt. in
No. 14–2887 (D Colo., June 25, 2020), ECF Doc. 284, p. 17.
But the District Court did not read the government contract
that way. Nothing in its terms, the court found, instructed
GEO to adopt the work rules at issue. Rather, in “inde-
pendently develop[ing] and implement[ing]” those rules,
GEO “far exceeded its contrac tua l obl igati ons. ” 635
F. Supp. 3d 1151, 1173 (Colo. 2022). So the Yearsley doc-
trine, the District Court concluded, did not relieve GEO of
legal responsibility. Instead, a trial would be necessary to
address whether GEO's policies violated the referenced bans
on forced labor or unjust enrichment.
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GEO immediately fled an appeal, but the Court of Appeals
for
the Tenth Circuit dismissed it for lack of jurisdiction.
See 2024 WL 4544184 (Oct. 22, 2024). Appellate jurisdic-
tion, the court explained, seldom extends to an order that
does not terminate the litigation at issue. Such an order
qualifes for interlocutory review only if it satisfes three con-
ditions deriving from this Court's decision in Cohen v. Bene-
fcial Industrial Loan Corp., 337 U. S. 541 (1949). And an
order denying Yearsley protection, the Tenth Circuit held,
does not do so. The court saw no need to address the frst
or third Cohen conditions because it concluded that a Years-
ley denial funked the second: Such a ruling is not (as Cohen
demands) “completely separate from the merits” of the suit.
2024 WL 4544184, *7. That is because, the court reasoned, an
inquiry into what the Government instructed the contractor
to do is relevant to both Yearsley's application and the “law-
fulness of the contractor's challenged actions.” Id., at *8.
We granted certiorari, 605 U. S. 968 (2025), to resolve
whether a pretrial order denying Yearsley protection to a
government contractor is immediately appealable. Like the
Tenth Circuit, we hold that it is not. But unlike the Tenth
Circuit, we focus on the third Cohen condition, which re-
quires an order to be effectively unreviewable on appeal from
a fnal judgment.
II
“Finality as a condition of review is an historic characteris-
tic of federal appellate procedure.” Cobbledick v. United
States, 309 U. S. 323, 324 (1940). Originating in the First
Judiciary Act of 1789, the fnality requirement is now codifed
in 28 U. S. C. § 1291. The courts of appeals, that section pro-
vides, have jurisdiction over appeals from “fnal decisions of
the district courts.” And a decision generally is “fnal”
under § 1291 only when it “resolves the entire case”—when it
“ends the litigation” (on the merits or otherwise) and “leaves
nothing for the court to do but execute the judgment.” Rit-
zen Group, Inc. v. Jackson Masonry, LLC, 589 U. S. 35, 37–38
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444 GEO
GROUP, INC. v. MENOCAL
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(2020). That fnal-judgment rule, by preventing piecemeal
appea
ls, “promotes the effcient administration of justice”
and “preserves the proper balance between trial and appellate
courts.” Microsoft Corp. v. Baker, 582 U. S. 23, 36–37 (2017).
For a “small class” of decisions, however, the fnality rule
gives ground and allows interlocutory appeals. Cohen, 337
U. S., at 546. Section 1291, we have often explained, re-
quires a “practical rather than a technical construction,” and
thus may treat as “fnal” certain decisions that do not end a
case. Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100,
106 (2009) (quoting Cohen, 337 U. S., at 546). We identify
those decisions by category, not case-specifc circumstances.
See Mohawk, 558 U. S., at 107. And we erect a high bar.
A non-terminal order may be appealed, Cohen held, only if
it “fnally determine[s] claims of right separable from, and
collateral to, rights asserted in the action, too important to
be denied review and too independent of the cause itself to
require that appellate consideration be deferred.” 337 U. S.,
at 546. That so-called collateral-order doctrine, we have
since underscored, is “narrow,” “stringent,” and of “modest
scope.” Digital Equipment Corp. v. Desktop Direct, Inc., 511
U. S. 863, 868 (1994); Will v. Hallock, 546 U. S. 345, 350 (2006).
To keep it that way, this Court has “distilled” the Cohen
ruling into three non-negotiable conditions. Will, 546 U. S.,
at 349. A pre-judgment order, to get immediate review,
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 fnal judgment.” Van Cauwenberghe v.
Biard, 486 U. S. 517, 522 (1988). Failure on any component
of that three-part test is fatal.
When, as here, an order denies a pretrial request to dis-
miss, appea lability under Cohen w ill genera l ly tur n on
whether the defendant has asserted a defense to liability or
instead an immunity from suit. See Mitchell v. Forsyth, 472
U. S. 511, 526–527 (1985). If a defense, Cohen is likely to
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block an immediate appeal; if an immunity, Cohen will likely
a
llow it. To show why, we describe below the difference
between a merits defense and an immunity; what that differ-
ence entails for the right to avoid trial; and how that right
matters in applying the third Cohen condition. Once that is
done, it becomes clear why, as later described, the parties
here mainly contest whether Yearsley offers an immunity or
just a merits defense. See infra, at 447–448.
1
To start, a party asserting a merits defense in a lawsuit
makes a fundamentally different kind of argument than a
party asserting an immunity. The former advances some
reason why his conduct was not unlawful—or said otherwise,
why under the law he did nothing wrong. And so, that de-
fendant says, he should not be found liable: Because he
obeyed the law, he should not, for example, have to pay dam-
ages. By contrast, a party asserting an immunity “makes
no challenge” to “the merits of the charge against him.”
Abney v. United States, 431 U. S. 651, 659 (1977). That de-
fendant need never say he followed the law, because his claim
of immunity does not turn on his conduct's legality. “[A]n
immunity frees one who enjoys it from a lawsuit whether or
not he acted wrongly.” Richardson v. McKnight, 521 U. S.
399, 403 (1997). A classic example is sovereign immunity: It
shields the Government from suit (absent a waiver) regard-
less whether the Government violated the law. See, e. g.,
FDIC v. Meyer, 510 U. S. 471, 475 (1994).
2
1
Note that one category of cases exists outside this dichotomy: a non-
merits-based defense that also is not an immunity. On occasion, this
Court has decided that a defense, although barring suit irrespective of
the merits, still fails to qualify as an immunity because it does not serve
suffciently “weighty public objective[s].” Will v. Hallock, 546 U. S. 345,
353 (2006) (so holding with respect to the Federal Tort Claims Act's judg-
ment bar). That “public interest” wrinkle, however, never arises if the
defense is on the merits—which, as we will explain, is the case here.
2
Qualifed immunity is, in the respect relevant here, the same. That
doctrine shields a defendant even when the claim against him “in fact has
merit”—or otherwise said, even when he violated the law—so long as the

446 GEO
GROUP, INC. v. MENOCAL
Opinion of the Court
That difference between a merits defense and an immunity
ent
ails another: The latter, but not the former, is in its “es-
sence” an “entitlement not to stand trial.” Mitchell, 472
U. S., at 525. Because an immunity applies irrespective of
the merits, the protection it offers is not a simple fnding of
non-liability. Rather, the immunity ensures that the defend-
ant need not “answer for his conduct” in court at all—that
he avoids, in addition to liability, all the usual “burdens of
litigation,” including a trial. Id., at 525–526. And so we
typically describe the protection in just that way: as an im-
munity “from suit.” Id., at 526 (emphasis in original); see,
e. g., Thacker v. TVA, 587 U. S. 218, 221 (2019); Jam v. Inter-
national Finance Corp., 586 U. S. 199, 202 (2019). A “mere
defense” to liability, as we have noted, offers something dif-
ferent, and of lesser value. Mitchell, 472 U. S., at 526. Be-
cause it establishes that the defendant acted lawfully, a valid
defense leads to a judgment of non-liability. But it does not
allow the defendant to escape the varied rigors and costs of
legal proceedings. Indeed, it is in and through those pro-
ceedings that the asserted defense is addressed and liability
fnally determined.
And that divergence—in whether the defendant possesses
a right not to stand trial—matters for the third Cohen condi-
tion. Again, that condition states that a non-terminal order
may be appealed when issued only if it is “effectively unre-
viewable on appeal from a fnal judgment.” Van Cauwen-
berghe, 486 U. S., at 522; see supra, at 444. For that to be
true, we have explained, the order must involve a right that
“would be irretrievably lost absent an immediate appeal.”
Van Cauwenberghe, 486 U. S., at 524. The right to avoid
trial fts that description. It is irretrievably lost once trial
occurs, even supposing the defendant were to prevail on the
law at that time was not “clearly established.” Camreta v. Greene, 563
U. S. 692, 705 (2011). “Like other forms of immunity,” then, qualifed im-
munity offers protection “even when [the defendant] acts unlawfully.”
Brief for United States as Amicus Curiae 23.
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merits. And so, in the ordinary case, the denial of an immu-
nity
is immediately appealable. See ibid.; Abney, 431 U. S.,
at 659–660. But the right to a fnding of non-liability stands
on a different footing: It can be effectively vindicated after
a trial has occurred, through the reversal of an adverse fnal
judgment. And so the denial of a merits defense is gener-
ally appealable only once trial-court proceedings have ended.
See Van Cauwenberghe, 486 U. S., at 524; Mitchell, 472 U. S.,
at 526.
In short, then, distinguishing between a merits defense
and an immunity from suit, in the way described above, of-
fers a ready way of determining whether the denial of a re-
quest to dismiss a case can satisfy Cohen's third condition for
interlocutory review.
3
III
For just that reason, the parties here mainly dispute
whether our Yearsley decision offers federal contractors a
3
By the same token, that distinction is likely to determine whether the
other two Cohen conditions are met, though we need not here address the
reasons in any detail. See Puerto Rico Aqueduct and Sewer Authority
v. Metcal f & Eddy, Inc., 506 U. S. 139, 144 (1993) (“Once it is established
that” a State is “immune from suit in federal court, it follows that the
elements of the Cohen collateral order doctrine are satisfed”). Recall
that Cohen's second condition, on which the Court of Appeals relied, de-
mands that the order “resolve an important issue completely separate
from the merits of the action.” Van Cauwenberghe v. Biard, 486 U. S.
517, 522 (1988); see supra, at 444. A decision on a defense, addressing
the legality of the defendant's conduct, goes directly to the suit's merits—
whereas a decision on an immunity, applying regardless of that conduct's
legality, does not. Similarly for the frst condition, which is that the order
“conclusively determine the disputed question.” Van Cauwenberghe, 486
U. S., at 522. When a defense turns on contested facts, as is often true,
a pretrial order denying it functions only to defer its resolution until trial.
By contrast, we have held, a pretrial denial of an immunity always acts as
a “fully consummated decision” because nothing can then happen to avert
“the trial the defendant maintains is barred.” Mitchell v. Forsyth, 472
U. S. 511, 527 (1985) (quoting Abney v. United States, 431 U. S. 651, 659
(1977)).
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448 GEO
GROUP, INC. v. MENOCAL
Opinion of the Court
merits defense or instead an immunity. Menocal (supported
by
the United States as amicus curiae) says a defense, be-
cause Yearsley gives contractors only a way to show that
their conduct complied with the law. GEO says an immu-
nity—more specifcally, “derivative sovereign immunity.”
Brief for GEO 15. Under Yearsley, GEO contends, the Gov-
ernment's own immunity extends to contractors who meet
specifed conditions, thereby giving them the “right not to
stand trial.” Brief for GEO 15. So which is it—a defense
or an immunity?
Yearsley involved a suit by landowners against a federal
contractor for fooding their property. The Government had
hired the contractor to redirect the Missouri River in order
to improve its navigation. The construction company, as
specifed in the contract, built dikes in a part of the river
near where the Yearsleys owned a farm. The result, as ex-
pected, was to wash away almost 100 acres of their land.
The Yearsleys did not dispute that the contractor's work was
“all authorized and directed by the Government.” 309 U. S.,
at 20. Nonetheless, they sued the contractor for money
damages.
This Court held that there was “no liability on the part of
the contractor.” Id., at 21. Drawing from multiple prece-
dents involving agency law, the Court explained that a con-
tractor acting as an agent of the Government could be held
liable for injurious conduct in only two circumstances: when
“he exceeded his authority” or when that authority “was not
validly conferred.” Ibid. Here, neither circumstance ob-
tained. As to the second, the Court explained that the Gov-
ernment had “validly” authorized the company to food the
Yearsleys' land, because the Government itself possessed
that legal right and had properly delegated it by contract.
Id., at 21–22. And as to the frst, the Court concluded that
all the company's work had stayed within the bounds of the
authority given: The Government had provided instructions,
and the contractor had merely “execut[ed] its will.” Id., at

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449
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20–21. Given both those facts—the Government's lawful au-
thor
ization and the contractor's compliance with it—the
Court could see “no ground for holding [the contractor] lia-
ble.” Id., at 22.
That reasoning describes a defense, not an immunity.
Yearsley provides protection to a contractor when it has re-
ceived a lawful authorization and acted according to its
terms—meaning, when the contractor has acted within legal
bounds. So in invoking Yearsley, the contractor is making
the argument of a merits defense—that it is not liable be-
cause it has complied with the law. See supra, at 445.
Conversely, Yearsley's protection runs out when the contrac-
tor may have violated the law—when the contractor either
acted under an illegal authorization or exceeded the scope of
a legal one. By drawing the line there, Yearsley ensures
that it will never shield unlawful conduct, in the way that all
immunities do. See supra, at 445. In short, because Year-
sley protects a contractor only when—and only because—it
has acted lawfully, Yearsley operates as a defense to liability
on the merits. And that is consistent with all Yearsley's lan-
guage. The decision never refers to an “immunity,” or oth-
erwise suggests that the defendant receives a pass from legal
proceedings; it asks only whether the contractor may be
found “liable.” 309 U. S., at 21–22.
Still more, GEO's contrary view would put Yearsley in con-
fict with the general rule that sovereign immunity is not
transferrable to agents, including contractors, of a govern-
ment. As Justice Holmes once explained, the Federal Gov-
ernment's immunity from a suit (absent a statute providing
otherwise) “does not extend to those that act[ ] in its name.”
Sloan Shipyards Corp. v. United States Shipping Bd. Emer-
gency Fleet Corporation, 258 U. S. 549, 568 (1922). The
Court repeated that precept in the Term just before Year-
sley: “[T]he government does not become the conduit of its
immunity in suits against its agents” just because “they
do [the government's] work.” Keifer & Keifer v. Recon-
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450 GEO
GROUP, INC. v. MENOCAL
Opinion of the Court
struction Finance Corporation, 306 U. S. 381, 388 (1939).
Rather
, the “exceptional freedom from legal responsibility”
that sovereign immunity offers is “confned” to the sovereign
entity itself. Ibid. Or again, a few Terms after Yearsley:
A private contractor cannot obtain “[i]mmunity from suit”
by “reason of a contract” it made with the Government.
Brady v. Roosevelt S. S. Co., 317 U. S. 575, 583 (1943). GEO
tries to bypass those holdings by arguing that they preclude
a contractor from asserting only “unconditional” sovereign
immunity, not the (supposed) “derivative sovereign immu-
nity” Yearsley offers, which is conditioned on compliance
with the Government's lawful directives. Reply Brief 6–7.
But the proposed distinction is strained. The whole thrust
of the decisions is to deny that government agents can as-
sert—whether always or sometimes—a “derived” form of
sovereign immunity. Rather, the Court insisted, sovereign
immunity belongs alone to the Government.
And another, pre-Yearsley decision proves the point, by
relegating a state agent that had asserted sovereign immu-
nity to a merits defense, whose contours anticipated what
Yearsley would offer. See Hopkins v. Clemson, 221 U. S.
636 (1911). Oddly enough, the suit challenged the same kind
of conduct involved in Yearsley: The government agent had
fooded a person's land. The State itself, the Court noted,
would have had “immunity from [a] suit” based on such con-
duct. 221 U. S., at 642. But an agent working on the
State's behalf could not “avail itself ” of that special “exemp-
tion” from “judicial process.” Id., at 642, 645. “[I]mmunity
from suit,” the Court explained, “is a high attribute of sover-
eignty—a prerogative of the State itself ”—which cannot be
invoked by the State's agents. Id., at 642–643. Yet all was
not lost: The agent got something. Although the agent was
“not exempt from suit,” it could “successfully defend”
against the charges by showing the “lawful authority under
which [it] acted.” Id., at 643. Those terms evoke the ones
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451
Opinion of the Court
Yearsley used later. See 309 U. S., at 22 (precluding liability
for
a contractor “acting under” “validly conferred” author-
ity); supra, at 448–449. And they function not, as GEO pos-
its, to condition the transfer of sovereign immunity, but to
describe something different—as the Court made explicit, a
merits “defen[se].” Hopkins, 221 U. S., at 643.
4
Once Yearsley is understood in that way—as a merits de-
fense—the question before us almost answers itself: No, a
district court's denial of Yearsley protection is not immedi-
ately appealable under § 1291. Like the denial of other de-
fenses, such a ruling is not, as Cohen's third condition de-
mands, “effectively unreviewable on appeal from a fnal
judgment.” Van Cauwenberghe, 486 U. S., at 522. The
right that a merits defense affords is to a fnding of non-
liability. And that right—unlike the right not to stand trial—
is fully vindicable on appeal from a fnal judgment. See
Swint v. Chambers County Comm'n, 514 U. S. 35, 43 (1995);
supra, at 446–447. All an appellate court need do at that
4
GEO counters that two of our decisions refer to Yearsley as offering
“immunity,” see Brief for GEO 17, 23, but that argument makes far too
much of one piece of loose language. The frst cited case, Brady v. Roose-
velt S. S. Co., 317 U. S. 575 (1943), mainly cuts against GEO. As noted
above, the Court there rejected the view that a government contractor
obtains “[i]mmunity from suit” by virtue of its contractual relation. Id.,
at 583; see supra, at 450. The Court then turned to Yearsley, fnding it
not to apply because the suit alleged negligent conduct, outside what the
Government had authorized. In that half-paragraph, the decision once
refers to Yearsley as providing a “certain immunity.” 317 U. S., at 583.
But it apparently used that term in a colloquial sense, as something of
a synonym for “protection.” The Court's fuller description of Yearsley
explains that it relieves the contractor of “liability,” without suggesting
that it also offers a pass from litigation. 317 U. S., at 583. And the sec-
ond cited case, Campbell-Ewald Co. v. Gomez, 577 U. S. 153 (2016), gives
GEO even less to work with. That decision merely quotes the imprecise
phrase in Brady on the way to rejecting another contractor's claim (even
more expansive than GEO's) to share in the Government's sovereign im-
munity. 577 U. S., at 166.
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Opinion of Thomas, J.
point is reverse the erroneous liability fnding. So the fnal-
ity
rule of § 1291 precludes interlocutory review of a Year-
sley denial.
5
For those reasons, we hold that the Court of Appeals
lacked jurisdiction over GEO's appeal. If eventually found
liable, GEO may of course appeal the District Court's rejec-
tion of its asserted Yearsley defense. But GEO must wait
until then. A Yearsley denial is not appealable before the
trial court's proceedings have ended.
We therefore affrm the judgment of the Court of Appeals
and remand the case for further proceedings consistent with
this opinion.
It is so ordered.
Justice Thomas, concurring in part and concurring in the
judgment.
I concur in Parts I and III of the Court's opinion and in
its judgment. I agree with the Court that Yearsley v. W. A.
Ross Constr. Co., 309 U. S. 18 (1940), and similar decisions
establish a defense from liability and not an immunity from
suit. See ante, at 448–449. Orders rejecting Yearsley de-
fenses are therefore unlike the orders denying immunities that
this Court has already held to be immediately appealable.
Because no other statute or rule authorized an interlocutory
appeal here, the Court correctly affrms the Tenth Circuit's
dismissal. I do not join Part II because “[w]e need not, and
in my view should not, further justify our holding by apply-
ing ” the collateral-order doctrine established by Cohen v.
Benefcial Industrial Loan Corp., 337 U. S. 541 (1949). Mo-
hawk Industries, Inc. v. Carpenter, 558 U. S. 100, 115 (2009)
5
This holding still allows review of a given Yearsley denial by means of
§ 1292(b)'s separate appeal-certifcation process. Under that provision, a
district court may fnd that the special diffculty and importance of an
otherwise unappealable order counsels in favor of immediate review, and
an appellate court may accept that determination. Here, though, the Dis-
trict Court saw no reason to act under § 1292(b).
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453
Alito, J., concurring in judgment
(Thomas, J., concurring in part and concurring in judgment).
I
remain of the view that we should not expand the Cohen
collateral order doctrine beyond orders that our precedents
have already held to be immediately appealable.
The Cohen collateral-order doctrine, which allows federal
courts to exercise appellate jurisdiction over certain inter-
locutory orders, conficts with Congress's authority over fed-
eral appellate jurisdiction. U. S. Const., Art. I, § 8, cl. 9;
Art. III, § 1. By statute, parties generally cannot appeal
before fnal judgment. See 28 U. S. C. § 1291; ante, at 443–
444. Congress has established certain exceptions to that
fnal-judgment rule that allow parties to appeal some inter-
locutory orders immediately. E. g., § 1292(a)(1). It has also
authorized this Court to create further exceptions through
rulemaking. § 1292(e). Cohen's collateral-order doctrine
allows judges to create additional exceptions by judicial opin-
ion, which bypasses “ `Congress's designation of the rule-
making process as the way to defne or refne when a district
court ruling is “fnal” and when an interlocutory order is
appealable.' ” Mohawk Industries, 558 U. S., at 114–115
(opinion of Thomas, J.) (quoting Swint v. Chambers County
Comm'n, 514 U. S. 35, 48 (1995)). For that reason, if an in-
terlocutory order “is not on all fours with orders we pre-
viously have held to be appealable under the collateral order
doctrine,” it should not be immediately appealable. Mo-
hawk Industries, 558 U. S., at 115 (opinion of Thomas, J.).
Justice Alito, concurring in the judgment.
I agree with the Court that the defense conferred by Year-
sley v. W. A. Ross Constr. Co., 309 U. S. 18 (1940), is not
an “immunity from suit.” I therefore agree that an order
denying a Yearsley defense is not a “collateral order” subject
to immediate appeal. But I would not rest these conclusions
solely on the fact that Yearsley's applicability “turn[s] on [the
defendant's] conduct's legality.” Ante, at 445. Under the
collateral-order doctrine, defendants may sometimes appeal
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the denial of a defense immediately when doing so is neces-
sary
to vindicate important constitutional or public-policy in-
terests. And this rule holds true even if the defense at issue
turns on the legality of the defendant's conduct. Thus, I
cannot join the opinion of the Court, but I concur in the judg-
ment because deferring appellate review of Yearsley rulings
until fnal judgment does not imperil important constitu-
tional or public-policy interests.
I
Since 1789, Congress has generally limited the universe of
appealable orders to “fnal decrees and judgments.” Act of
Sept. 24, 1789, 1 Stat. 84. Today, this “fnal-judgment rule”
limits the jurisdiction of federal courts of appeals. See 28
U. S. C. § 1291. The Court has long given this limit a “prac-
tical rather than a technical construction.” Cohen v. Bene-
fcial Industrial Loan Corp., 337 U. S. 541, 546 (1949). Con-
sistent with that approach, our decision in Cohen held that
certain interlocutory orders—now known as collateral or-
ders—are suffciently “fnal” that a party may appeal them
before litigation reaches fnal judgment. Id., at 546–547.
Our collateral-order doctrine establishes three criteria
that an order must satisfy to qualify for immediate appeal.
The order must (1) “conclusively determine [a] disputed
question,” (2) resolve an issue “separate from the merits of
the action,” and (3) be “effectively unreviewable on appeal
from a fnal judgment.” Coopers & Lybrand v. Livesay, 437
U. S. 463, 468 (1978). Whether a given order satisfes these
criteria does not turn on the “facts of a particular case.”
Carroll v. United States, 354 U. S. 394, 405 (1957). Rather,
the criteria must be satisfed for the “entire category” of or-
ders. Digital Equipment Corp. v. Desktop Direct, Inc., 511
U. S. 863, 868 (1994).
A
Initially, this Court applied the “effectively unreviewable”
requirement to capture orders that would become moot by
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455
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the time of fnal judgment. See Cohen, 337 U. S., at 546.
F
or those orders, a strict application of the fnal-judgment
rule “would practically defeat the right to any review at all.”
Cobbledick v. United States, 309 U. S. 323, 324–325 (1940).
We frst applied this reasoning in Cohen, which involved a
district-court order that excused the plaintiffs from a
litigation-bond requirement. 337 U. S., at 544–547. Appli-
cable state law required the plaintiffs to post such a bond
to secure their obligation to pay the defendant's litigation
expenses and attorney's fees if their claims failed. Cohen
held that the order excusing the plaintiffs from posting that
bond was immediately appealable because it would “not be
merged in fnal judgment.” Id., at 546. Regardless of who
prevailed at fnal judgment, the question whether the plain-
tiffs had to post a bond would be moot. If the defendant
prevailed, an appeal would not relieve it from the plaintiffs'
failure to post a bond. And if the plaintiffs prevailed, the
defendant would not be entitled to recover its legal costs.
Thus, if orders denying requests for litigation bonds were
not subject to immediate appeal, those orders would never
receive appellate review.
This conception of the collateral-order doctrine's “effec-
tively unreviewable” requirement informed our decision in
Swift & Co. Packers v. Compania Colombiana Del Caribe,
S. A., 339 U. S. 684 (1950). There, we held that the Fifth
Circuit had appellate jurisdiction over a lower court's order
vacating the attachment of a foreign vessel. Id., at 685–689.
That vessel, which the libelants attached while it passed
through U. S.-controlled waters, served as security for their
claims against the foreign defendant. In this respect, the
vessel resembled the bond in Cohen. As was the case with
the bond order, an immediate appeal was the only means for
appellate review of the order vacating the attachment of the
vessel. If the libelants in Swift did not prevail at fnal judg-
ment, the court's vacatur of the attachment order would be-
come moot. And if the libelants did prevail, any appellate
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review of the attachment issue would be an “empty rite,” as
the
vessel would have likely departed U. S. jurisdiction. 339
U. S., at 689.
The same reasoning explains our jurisdictional holding in
Stack v. Boyle, 342 U. S. 1 (1951), which extended Cohen to
an order denying a criminal defendant's motion to modify
his pretrial bail-bond amount. 342 U. S., at 3. Once a court
renders fnal judgment in a criminal case, the conditions gov-
erning the defendant's pretrial release become moot. By
that juncture, the defendant has either been released from
custody or begun a sentence of incarceration. Thus, if there
were to be any appellate review of bail, it would need to
occur before fnal judgment.
In sum, our early collateral-order cases applied the “effec-
tively unreviewable” requirement narrowly. It captured
those orders that would be unreviewable on appeal from a
fnal judgment on account of mootness.
B
Over the ensuing decades, the Court expanded its applica-
tion of the “effectively unreviewable” requirement to include
orders that undoubtedly would not become moot by fnal
judgment. For example, in Abney v. United States, 431
U. S. 651 (1977), and Helstoski v. Meanor, 442 U. S. 500
(1979), the Court held that denials of defenses under the
Double Jeopardy Clause and Speech or Debate Clause satis-
fed Cohen even though these protections could be “vin-
dicated on an appeal following fnal judgment.” Abney,
431 U. S., at 660. Like most criminal-law defenses, double-
jeopardy and speech-or-debate issues merge into the fnal
judgment, and a reviewing court can grant meaningful relief
on these grounds by reversing a defendant's conviction.
Abney and Helstoski nevertheless held that denials of relief
under these two Clauses were collateral orders.
Our holdings in these cases relied on the premise that
those two protections were not merely shields from criminal
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liability. They were instead “guarantee[s] against being . . .
put
to trial” at all. Abney, 431 U. S., at 661; accord, Hel-
stoski, 442 U. S., at 508 (“[T]he Speech or Debate Clause was
designed to protect Congressmen . . . from the burden of
defending themselves” (internal quotation marks omitted)).
Thus, although a court could review these defenses on appeal
from a fnal judgment, a court could not fully vindicate their
protections at that time. By the time of fnal judgment, the
defendant would have already been exposed to trial, thereby
suffering the very harm that these defenses exist to prevent.
This line of reasoning suffced to render the orders in Abney
and Helstoski “effectively unreviewable” on appeal from a
fnal judgment. See Abney, 431 U. S., at 662.
This doctrinal development had important implications for
our collateral-order jurisprudence. Under Abney and Hel-
stoski's logic, once a court designates a defense as an “immu-
nity from suit,” that defense satisfes the third collateral-
order criterion. Digital Equipment, 511 U. S., at 870. We
have likewise recognized that an order denying an immunity
from suit will also satisfy the other two collateral-order re-
quirements. See ante, at 447, n. 3. The denial of an immu-
nity satisfes the frst criterion because it “conclusively de-
termine[s]” that a defendant may go to trial. Coopers &
Lybrand, 437 U. S., at 468. See Helstoski, 442 U. S., at 507
(“Once a motion to dismiss is denied, there is nothing the
Member can do under the [Speech or Debate] Clause . . . to
prevent the trial”). And a “claim of immunity is conceptu-
ally distinct from the merits,” so an order denying an immu-
nity claim satisfes the second requirement. Mitchell v. For-
syth, 472 U. S. 511, 527 (1985). For these reasons, federal
courts have consistently held that denials of an immunity
are collateral orders subject to immediate appeal. See, e. g.,
Nixon v. Fitzgerald, 457 U. S. 731, 742 (1982) (Presidential
civil immunity); Mitchell, 472 U. S., at 530 (qualifed immu-
nity); Puerto Rico Aqueduct and Sewer Authority v. Met-
calf & Eddy, Inc., 506 U. S. 139, 143 (1993) (state and territo-
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rial sovereign immunity); Kilburn v. Socialist People's
L
ibyan Arab Jamahiriya, 376 F. 3d 1123, 1126 (CADC 2004)
(foreign sovereign immunity).
Given that the designation of a defense as an immunity is
dispositive under the collateral-order doctrine, our Court has
stringently guarded the designation. See Midland Asphalt
Corp. v. United States, 489 U. S. 794, 801 (1989). After all,
“virtually every right that could be enforced appropriately
by pretrial dismissal” could be loosely described as an immu-
nity from suit. Digital Equipment, 511 U. S., at 873. But
treating every such right as an immunity would permit the
“narrow” collateral-order doctrine to “swallow” the fnal-
judgment rule in “virtually every case.” Id., at 868, 873 (in-
ternal quotation marks omitted). Our Court has therefore
recognized the need to distinguish “between a right not to
be tried and a right whose remedy requires the dismissal of
charges.” United States v. Hollywood Motor Car Co., 458
U. S. 263, 269 (1982) (per curiam). And we have explained
that determining whether a defense constitutes an immunity
requires an evaluation of “the value of the interests” that an
immediate appeal would advance. Digital Equipment, 511
U. S., at 878–879. Specifcally, we explained in Will v. Hal-
lock, 546 U. S. 345 (2006), that a defense “should be treated
as an immunity demanding the protection of a collateral
order appeal” only if wrongly allowing a suit to proceed
would “imperil a substantial public interest.” Id., at 353;
see also Lauro Lines s.r.l. v. Chasser, 490 U. S. 495, 502
(1989) (Scalia, J., concurring) (“The reason” that a right fails
the third requirement of the collateral-order doctrine “is,
quite simply, that the law does not deem the right impor-
tant enough”).
Our collateral-order decisions refect this approach. We
have applied the immunity label to defenses when allowing
an immediate appeal was necessary to preserve “some par-
ticular value of a high order,” such as “honoring the separa-
tion of powers, preserving the effciency of government and
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the initiative of its offcials, respecting a State's dignitary
i
nterests, and mitigating the government's advantage” over
individual defendants in high-stakes matters. Will, 546
U. S., at 352–353; see, e. g., Nixon, 457 U. S., at 742–743, 749,
758 (citing separation-of-powers concerns when allowing an
appeal of an order denying Presidential immunity); Mitchell,
472 U. S., at 526 (explaining that the avoidance of distraction,
overdeterrence, and timidity in Government service justifed
immediate appeals of orders denying qualifed immunity);
Puerto Rico Aqueduct and Sewer Authority, 506 U. S., at
146 (allowing an appeal of an order denying sovereign immu-
nity to “ `prevent the indignity of subjecting a State to the
coercive process of judicial tribunals' ”). In contrast, we
have declined to designate defenses as immunities when
postponing appellate review to fnal judgment would not im-
peril important interests. See, e. g., Will, 546 U. S., at 353
(holding that the interest in shortening troublesome litiga-
tion is insuffcient to treat a defense as an immunity); Mo-
hawk Industries, Inc. v. Carpenter, 558 U. S. 100, 108–113
(2009) (acknowledging that the attorney-client privilege
serves important public interests but declining to designate
it as an immunity because deferring appeals would not mean-
ingfully harm those interests).
As these decisions illustrate, we have been cautious in re-
cent years about expanding the collateral-order doctrine, but
we have not closed the book on Cohen. Just two Terms ago,
we designated another defense as an immunity and evaluated
it in an interlocutory posture. See Trump v. United States,
603 U. S. 593, 635 (2024) (citing Mitchell, 472 U. S., at 524–
530); 603 U. S., at 654–655 (Barrett, J., concurring in part).
The test for determining whether a defense constitutes an
immunity therefore remains keyed to the interests that an
immediate appeal would vindicate. If postponing review of
a wrongly denied defense would undermine important con-
stitutional or policy interests, that defense constitutes an
immunity.
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II
U
nder this framework, the Yearsley doctrine is not an im-
munity from suit. Permitting immediate appeals of orders
denying Yearsley defenses is not necessary to vindicate any
sufficiently i mpor t ant constituti ona l or publ ic-pol icy
interests.
A
As the majority correctly explains, Yearsley shields de-
fendants from damages actions for conduct that federal law
authorized. See Campbell-Ewald Co. v. Gomez, 577 U. S.
153, 166–167 (2016). Although this protection is important
for a range of Government operations, it does not meet the
threshold to be designated an immunity.
First, postponing appellate review of Yearsley's applic-
ability until fnal judgment would not create signifcant
separation-of-powers problems. To be sure, the possibility
that courts might impose liability for conduct that Congress
author i zed presents some confl ic t between those two
branches of Government. Likewise, incorrect contractor-
liability adjudications can interfere with Executive Branch
operations. But these risks of error arise anytime a court
misapplies a federal statute or entertains an action involving
a Government contractor. Moreover, these risks pale in
comparison to the separation-of-powers concerns that moti-
vated the application of the collateral-order doctrine in other
immunity contexts. See, e. g., Helstoski, 442 U. S., at 502
(concerning a Congressman who was exposed to criminal lia-
bility based on his decision to introduce a bill in the House
of Representatives).
Yearsley does not implicate sovereign-dignity interests,
either. Although GEO Group describes Yearsley as confer-
ring “derivative sovereign immunity” on contractors, Brief
for Petitioner 10, this label is a poor ft. Sovereign immu-
nity protects governments from the indignity of being sub-
jected to a court's jurisdiction. Puerto Rico Aqueduct and
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Sewer Authority, 506 U. S., at 146. We have never de-
scr
ibed the Yearsley doctrine in those terms, nor have we
suggested that it limits courts' jurisdiction over contractors.
Cf. Yearsley, 309 U. S., at 19 (noting without disagreement
that the lower court exercised jurisdiction over the case);
Campbell-Ewald Co., 577 U. S., at 165–166 (concluding that
the lower court had jurisdiction over a case before determin-
ing whether Yearsley applied). Rather, Yearsley merely
shields contractors from exposure for conduct that federal
law authorized. I therefore agree with the majority that
the Yearsley doctrine “derives” from the Government's law-
making authority, not its sovereign immunity. See ante, at
449–451; cf. Campbell-Ewald Co., 577 U. S., at 166–167;
Sloan Shipyards Corp. v. United States Shipping Bd. Emer-
gency Fleet Corporation, 258 U. S. 549, 566–567 (1922).
Last, unlike with qualifed immunity, allowing immediate
appeals of Yearsley denials is not necessary to prevent over-
deterrence, timidity, and distraction in Government service.
That is not to say that these concerns are entirely absent
when plaintiffs bring damages actions against Government
contractors. As this Court recognized in Filarsky v. Delia,
566 U. S. 377 (2012), the public has an interest in preventing
overdeterrence, timidity, and distraction in Government
functions no matter the “nature of [the defendant's] particu-
lar relationship with the government.” Id., at 389–392.
But our doctrine already accommodates these concerns by
allowing contractors to invoke qualifed immunity. Ibid.;
Campbell-Ewald Co., 577 U. S., at 167. Indeed, qualifed im-
munity provides a greater protection to contractors than
Yearsley does. Whereas Yearsley shields only those con-
tractors who act within the bounds of their legal authoriza-
tion, qualifed immunity protects “all but the plainly incom-
petent or those who knowingly violate the law.” Malley v.
Briggs, 475 U. S. 335, 341 (1986). And as the defense's name
indicates, contractors may immediately appeal denials of
qualifed immunity. Mitchell, 472 U. S., at 530. Because
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qualifed immunity already vindicates the public interest in
avoidi
ng overdeterrence, timidity, and distraction among
contractors, there is no overriding interest in also allowing
immediate appeals of orders denying Yearsley's more modest
protections.* Cf. Mohawk Industries, Inc., 558 U. S., at
109–112 (declining to treat the attorney-client privilege as an
immunity because other “established mechanisms for appel-
late review” were available).
In sum, allowing immediate appeals of orders denying
Yearsley defenses is not necessary to vindicate any impor-
tant constitutional or public-policy interests. Accordingly,
the Yearsley doctrine is not an immunity from suit. And
because Yearsley issues can be reviewed on an appeal from
a fnal judgment, these orders do not otherwise satisfy the
third collateral-order requirement.
B
Rather than conducting the public-interest inquiry that
our immunity case law employs, the majority trains most of
its analysis on a single question: Whether the Yearsley doc-
trine “turn[s] on [the defendant's] conduct's legality.” Ante,
*Although Government contractors may generally assert qualifed im-
munity, this Court has held that “private prison guards” may not in Rev.
Stat. § 1979, 42 U. S. C. § 1983 cases. See Richardson v. McKnight, 521
U. S. 399, 412 (1997). Separately, this Court has not decided whether
corporate-contractor defendants like GEO Group may invoke qualifed im-
munity. But see United Pet Supply, Inc. v. Chattanooga, 768 F. 3d 464,
484, n. 3 (CA6 2014) (noting that the Sixth Circuit has entertained corpo-
rate defendants' assertions of qualifed immunity). Perhaps the public in-
terest would be well-served by allowing appeals of orders denying Years-
ley defenses to those defendants who cannot invoke qualifed immunity.
Even so, our doctrine requires us to decide whether Yearsley denials are
collateral orders as a category, not “as applied” to particular defendants.
If, however, most defendants who invoke Yearsley could not invoke quali-
fed immunity, the collateral-order analysis might be different. For exam-
ple, if corporate contractors could never invoke qualifed immunity, then
there would be a stronger argument that denials of Yearsley defenses
should be immediately appealable.
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at 445. Because the Yearsley doctrine does, the majority
concludes
that it fails to satisfy the third collateral-order re-
quirement. That analysis is oversimplifed.
Of course, whether a defense turns on the legality of a
defendant's conduct can be relevant to the collateral-order
analysis. For example, the degree of overlap between a de-
fense and a defendant's conduct can bear on whether an
order is “ `separate from the merits of the action.' ” Ante,
at 447, n. 3; but see Mitchell, 472 U. S., at 527. It is also true
that certain “immunities from suit” are jurisdictional bars
that shield a defendant from judicial process regardless of
whether it acted lawfully. See, e. g., 28 U. S. C. § 1604 (codi-
fying foreign sovereign immunity as a jurisdictional bar);
Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 72–73 (1996)
(treating state sovereign immunity as a jurisdictional limit).
Nonetheless, the majority's rule cannot fully explain our
collateral-order case law. For instance, qualifed immunity
is an immunity from suit, yet its applicability can and often
does turn on whether a defendant violated the law. See
District of Columbia v. Wesby, 583 U. S. 48, 62–63 (2018).
Indeed, before this Court decided Pearson v. Callahan, 555
U. S. 223 (2009), a court evaluating a qualifed-immunity de-
fense had to resolve the legality of the defendant's alleged
conduct. Id., at 232; see, e. g., Scott v. Harris, 550 U. S. 372,
377 (2007). We nevertheless treated (and continue to treat)
denials of qualifed immunity as collateral orders.
On the other side of the ledger, we have held that several
defenses are not immunities even though they do not turn
on the legality of the defendant's conduct. For instance, this
Court has held that neither the Federal Tort Claims Act's
judgment bar nor a criminal defendant's right against vindic-
tive prosecution qualifes as an immunity from suit, even
though neither defense concerns a defendant's challenged
conduct. See Will, 546 U. S., at 353–355; Hollywood Motor
Car Co., 458 U. S., at 267–270; see also Digital Equipment
Corp., 511 U. S., at 884 (holding that a lower court's refusal

464 GEO
GROUP, INC. v. MENOCAL
Alito, J., concurring in judgment
to enforce a settlement agreement against a plaintiff 's claims
was
not a collateral order).
In short, although the majority's focus—whether a defense
turns on the legality of the defendant's conduct—can be rele-
vant in the collateral-order analysis, it is not dispositive of
whether a defense constitutes an immunity.
***
Because postponing appellate review of Yearsley issues
until fnal judgment would not imperil important constitu-
tional or public-policy interests, I concur in the judgment of
the Court.
Page Proof Pending Publication

Page Proof Pending Publication
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. Other revisions may include adjustments to formatting, cap-
tions, citation form, and any errant punctuation. The following additional
edits were made:
None