Justices Doubt Timing of Immunity Appeal in GEO Wage Case (1)

Several US Supreme Court justices appeared skeptical of GEO Group Inc.’s argument that it can immediately appeal a lower court’s rejection of its immunity defense to escape forced labor claims from immigration detainees in Colorado.

During a hearing Monday, at least four justices seemed hesitant to overturn the US Court of Appeals for the Tenth Circuit, which declined to hear the private prison operator’s appeal until the merits of the detainees’ claims are decided.

The high court’s ultimate decision could settle a 5-3 split among circuit courts over whether federal contractors can file an immediate appeal when they’re blocked from claiming the government’s immunity from being sued—a defense known as “derivative sovereign immunity.”

GEO contracts with US Immigration and Customs Enforcement to run detention facilities. Its attorney Dominic Emil Draye, co-chair of Greenberg Traurig LLP’s national appeals & legal issues group, told the justices that the lower court’s order unfairly blocked the contractor from claiming immunity.

GEO shouldn’t have to wait until later in the litigation process to appeal the district court’s order, he said.

But Justices Ketanji Brown Jackson, Elena Kagan, Sonia Sotomayor, and Amy Coney Barrett agreed with the detainees and US Solicitor General D. John Sauer that high court precedent addressing derivative sovereign immunity doesn’t create a true immunity from suit. Instead, it’s merely a defense that’s merits-based and only reviewable after final judgment.

“We have certain statutory limits, and one of them is the finality rule,” Sotomayor told Draye.

GEO is essentially asking for “a judge- made exception to finality after we’ve said, which is to be sparingly used, and a judge-made exception to Congress’s legislation over immigration and government contracting,” she said.

Justice Brett Kavanaugh also noted the government’s stance undermines GEO’s argument that the lower court orders were inappropriate. “That’s a big, big hurdle,” he said.

Yearsley Ruling Revisited

GEO is facing two classes of approximately 60,000 detainees accusing it of unjust enrichment and violating the Trafficking Victims Protection Act.

The lawsuit, filed in 2014, claimed GEO forced detainees at a Colorado facility to perform various jobs, including preparing food, operating the library, and doing laundry, or risk solitary confinement under a voluntary work program. They were allegedly paid just $1 per day.

The Supreme Court’s decision will depend on its interpretation of the scope and nature of a contractor’s defense under the 1940 Yearsley v. W.A. Ross Construction Co. decision.

Several justices suggested that the immunity GEO invoked under Yearsley is merely a defense to liability, which doesn’t trigger a right to immediate appeal. Additionally, Yearsley’s holding doesn’t mention immunity.

Draye maintained that federal contractors often work alongside government agencies and officials who have immunity from lawsuits, and that immunity should also apply to contractors performing the same functions.

“You’re just asking for a blanket, no liability for contractors,” Jackson replied.

Jennifer Dale Bennett, a principal at Gupta Wessler LLP representing the detainees, and US Justice Department attorney Sopan Joshi, who argued for the solicitor general’s office, told the justices the Yearsley defense only reviewable on appeal after a final judgment is issued.

The government “completely” agrees with GEO’s argument that denying it immunity could lead to prolonged, costly litigation, disrupt contracts, and increase government expenses, Joshi said.

“This is a really important defense,” but if the question before the court was whether GEO could invoke it at all, “we might well be on the other side of the lectern,” he added.

Meanwhile, Bennett said that assessing the applicability of the GEO’s immunity defense involves a fact-driven inquiry by the district court into the contractor’s actions and whether they were directed by the government.

The case is The GEO Group Inc. v. Menocal, U.S., No. 24-758, oral arguments held 11/10/25.