Justices won’t open shortcut for ICE contractor facing forced labor suit  

WASHINGTON (CN) — The Supreme Court on Friday shut down a bid by GEO Group, which operates private detention facilities, for help fending off claims its facility profited from detainee labor.

The group had asked the court for an interlocutory appeal, meaning its sovereign immunity claim would be decided before the merits of the detainees’ claims.

The justices unanimously disagreed, ruling that federal contractors could only use federal protections as a merits defense, not complete immunity from a suit. 

“Because [Yearsley v. Ross Construction] provides a defense to liability, not an immunity from suit, an order denying its protection can be effectively reviewed after a final judgment,” Justice Elena Kagan, a Barack Obama appointee, wrote for the court. “So appellate review of such an order, as of most pretrial rulings, must await completion of the district court’s proceedings.” 

The 1940 case created a test for contractors facing liability for work on government projects. But Kagan said Yearsley’s protections differed from the sovereign immunity that can be wielded by the government. 

She said that while immunity equates to an entitlement not to stand trial, a liability defense is of lesser value. 

“Because it establishes that the defendant acted lawfully, a valid defense leads to a judgment of non-liability,” Kagan wrote. “But it does not allow the defendant to escape the varied rigors and costs of legal proceedings. Indeed, it is in and through those proceedings that the asserted defense is addressed and liability finally determined.” 

While detained at the GEO-managed Aurora Immigration Processing Center in June 2014, Alejandro Menocal said he was forced to perform unpaid janitorial work. Menocal claims detainees who refused were punished with solitary confinement. 

GEO also operated a “voluntary work program” at Aurora that paid workers $1 a day. While voluntary, Menocal said participation was necessary to buy supplemental food since GEO’s meals were inadequate. 

Menocal filed a class action against GEO a decade ago for violating the federal Trafficking Victims Protection Act and Colorado’s prohibition on unjust enrichment. After an unsuccessful challenge to the class certification, GEO pursued a derivative sovereign immunity claim. 

A lower court rejected the immunity bid, finding the contractor didn’t meet the standard set in Yearsley. The 10th Circuit refused to review GEO’s appeal, finding the Yearsley question couldn’t be examined in isolation without diving into the merits. GEO asked the Supreme Court to reverse, forcing the appellate court to review its immunity claim in an interlocutory posture. 

Justice Samuel Alito, a George W. Bush appointee, agreed with the court’s judgment but did not join Kagan’s opinion. Alito preferred a narrower approach, identifying some circumstances where defendants can appeal the denial of a defense immediately. 

He cited Trump v. United States, the Supreme Court’s controversial presidential immunity decision, as an example. 

“The test for determining whether a defense constitutes an immunity therefore remains keyed to the interests that an immediate appeal would vindicate,” Alito wrote. “If postponing review of a wrongly denied defense would undermine important constitutional or policy interests, that defense constitutes an immunity.” 

None of Alito’s colleagues joined his concurrence. 

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