The GEO Group v. Menocal

When a federal contractor invokes the Yearsley doctrine—the legal rule that shields contractors from liability for work the government lawfully authorized and directed—and a trial court rejects that defense before trial, the contractor cannot immediately appeal that rejection; it must wait until the case ends. Justice Elena Kagan authored the majority opinion, which was joined in full by Chief Justice John Roberts and Justices Sonia Sotomayor, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanjia Brown Jackson. Federal law requires that appeals generally wait until a case is completely over—what lawyers call the "final judgment rule" (28 U.S.C. §1291). A narrow exception exists for a small category of pretrial rulings that are "effectively unreviewable" after a trial concludes—meaning the right at stake would be permanently lost if the appeal had to wait. The key to that exception is the difference between a defense and an immunity. An immunity means a party cannot be dragged into court at all, regardless of whether it broke the law—the right to avoid trial itself is lost forever once trial occurs. A defense, by contrast, is simply an argument that the party did nothing wrong; if a court mistakenly rejects it, the defendant can still win at trial or have that error corrected on appeal afterward. The Yearsley doctrine is a defense, not an immunity. It protects a contractor only when the government gave a lawful directive and the contractor stayed within its bounds—meaning the protection depends entirely on whether the contractor acted lawfully. That is the definition of a merits defense. An immunity, by contrast, shields a party even when it broke the law (sovereign immunity is the classic example). Because Yearsley evaporates the moment a contractor exceeds its authority or acts under an illegal directive, it can never protect unlawful conduct—and no true immunity works that way. Sovereign immunity also belongs exclusively to the government itself; longstanding precedent bars its transfer to contractors simply because they do the government's work. A contractor found liable at trial can appeal the Yearsley issue then, so no right is "irretrievably lost" by waiting. Justice Clarence Thomas concurred in part and in the judgment, agreeing that Yearsley is a defense rather than an immunity, but refusing to join the majority's application of the Cohen collateral-order doctrine, which he views as an unconstitutional judicial expansion of appellate jurisdiction that belongs to Congress to define through legislation or rulemaking. Justice Samuel Alito concurred in the judgment, agreeing that Yearsley is not an immunity from suit, but arguing the majority's reasoning was oversimplified—the better test for whether a defense qualifies as an immunity is whether allowing an immediate appeal is necessary to vindicate important constitutional or public-policy interests, and Yearsley fails that test because no such weighty interests are at stake.