by Chuck Sharman

In a decision issued on February 25, 2026, the Supreme Court of the U.S. (SCOTUS) affirmed dismissal of an appeal filed by prison profiteer The GEO Group, after a federal district court refused to grant the firm immunity from a suit challenging conditions at a Colorado lockup it runs for federal Immigration and Customs Enforcement (ICE).

No court has yet reached the merits of the suit, even though it was filed in 2014. The Plaintiffs—Alejandro Menocal and group of fellow ICE detainees—accused GEO of violating state and federal law by forcing them to work for pay far below minimum wage while held at the firm’s Aurora Detention Facility in Colorado.

The U.S. District Court for the District of Colorado greenlit two of Plaintiffs’ claims—that GEO violated the Trafficking Victims Protection Act (TVPA), 18 U.S.C. §§ 1589, and that it was unjustly enriched by paying them just $1 a day to work in the prison. As PLN reported, the district court then certified two classes of Plaintiffs, and the U.S. Court of Appeals for the Tenth Circuit affirmed. [See: PLN, Apr. 16, 2018, online.]

After several years of discovery, GEO moved for summary judgment, asserting that it enjoyed derivative sovereign immunity from the Plaintiffs’ claims. It also said that the unjust enrichment claim under Colorado law clashed with federal provisions governing detention of migrants, and giving deference o the latter also required giving deference to GEO as a government contractor.

Citing Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940), the district court denied the derivative sovereign immunity claim, finding that none of GEO’s challenged actions was required by its contract with ICE. To the contrary, ICE said that detainees must perform housekeeping only for their personal spaces, and GEO superadded additional duties in the rest of the prison. The district court also denied the firm’s government-contractor defense to the unjust enrichment claim, which was based on the fact that ICE limited its reimbursement for detainee pay to $1 a day. As the district court pointed out, nothing in its contract limited the amount that GEO could actually pay, only the portion that ICE would reimburse.

The firm filed an appeal, but the Tenth Circuit said it lacked jurisdiction to hear it, since there was no final judgment, and the decision was not otherwise appealable under the collateral order doctrine. See: Menocal v. Geo Grp., Inc., 2024 U.S. App. LEXIS 26624 (10th Cir.). Undaunted, GEO turned to SCOTUS, which granted certiorari and heard arguments in the case. When it ruled, the high Court agreed with the 10th Circuit that the district court’s denial of derivative sovereign immunity did not satisfy the requirements for inclusion in the collateral order doctrine, as “distilled” from Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).

The third of those requirements, per Van Cauwenberghe v. Biard, 486 U.S. 517 (1988), is that the order “must be effectively unreviewable on appeal from a final judgment.” But as Justice Elena Kagan explained for the majority, that determination “will generally turn on whether the defendant has asserted a defense to liability or instead an immunity from suit,” citing Mitchell v. Forsyth, 472 U. S. 511 (1985).

Because the Yearsley doctrine requires an examination of the facts to determine whether derivative sovereign immunity applies, it cannot operate as immunity from the same suit in which that determination must be made. Accordingly, it must be a defense. And a defense must be presented and sustained at a trial, which an interlocutory appeal would foreclose. Thus distinguished from an immunity claim, the Court said, a “merits defense” like Yearsley affords a Defendant the right to a finding that he is not liable. “And that right—unlike the right not to stand trial—is fully vindicable on appeal from a final judgment.”

Justices Clarence Thomas and Samuel Alito issued opinions concurring with the conclusion but taking issue with the reasoning. Thomas said that he resented any exploration of Cohen because he didn’t believe the collateral order doctrine should be expanded. Alito groused that the doctrine had already been expanded too much and now includes “orders that undoubtedly would not become moot by final judgment.”

Accordingly, the Tenth Circuit’s decision was affirmed. Before the Court, the ICE detainee Plaintiffs were represented by attorney Jennifer D. Bennett of Gupta Wessler LLP in San Francisco. See: GEO Grp., Inc. v. Menocal, 607 U.S. 438 (2026).  

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