GEO Group, Inc. v. Menocal - Denial of Yearsley Protection Not Immediately Appealable

1 (Slip Op inion) OCTOBER TERM, 2025 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the t ime the opin ion is issue d. The syllabus constitutes no par t of the op inion of the Cour t but has been prepared by t he Report er of Decisions for the conve nience of the reader. See United States v. Detr oit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNI TED STATES Syllabus GEO GROUP, INC. v. MEN OCAL ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 24–758. Argued November 10, 2025—Decided Febr uary 25, 2026 Petitioner GEO Group operates a pr ivate detention facility in Aurora, Colorado, under a contra ct with U. S. Immigration a nd Customs En- forcement (ICE). Respondent Alejan dro Menocal, a former detainee at the Aurora facility, initiated this cl ass action, alleging GEO’s work pol- icies for detainees violate a federal bar on forced labor and Colorado’s prohibition 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 federa l contractor cannot b e held liable for conduct that the Government has lawfully “authorized and directed” the co n- tractor to perform. Id., at 20–21. GEO argued that ICE h ad author- ized and directed it to carry out th e challenged la bor policies. But the District Court did not read GEO’s contract with the Government to instruct GEO to ad opt those policies. The District Court thus con- cluded that the Yearsley doctrine did not relieve GEO of legal respon- sibility and a trial would be necessar y. GEO immediately filed an ap- peal, which the Court of Appeals for the Tenth Circuit dismissed for lack of jurisdiction, hold ing that an order denyin g Yearsley protection does not qualify for interlocutory review under Cohen v. Beneficial In- dustrial Loan Corp., 337 U. S. 541. Held: Because Yearsley provides federal cont ractors a potential m erits defense rather than an immunity fr om suit, a pretrial order denying Yearsley protection is not immediately appealab le. Pp. 3–12. (a) The courts of appeals have juri sdiction over appe als from “final decisions of the district courts.” 28 U. S. C. §1291. A decision gen er- ally is “final” only when it “resolve s the entire case”— when it “ends the litigation” on the meri ts or otherwise. Ritzen Group, Inc. v. Jackson

2 GEO GROUP, INC. v. MENOCAL Syllabus Masonry, LLC, 589 U. S. 35, 37–38. That final-judgment rule, by pre- venting piecemeal appeals, “pr omote s the efficient administration of justice” and “preser ves the proper balanc e between trial and appellate courts.” Microsoft Corp. v. Baker, 582 U. S. 23, 36–37. Under the collateral-order doctrine, ho wever, a “small class ” of deci- sions are treated as “final”—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 mu st satisfy the three conditions this Court has “distilled” from Cohen. Will v. Hallock, 546 U. S. 345, 349. The order must “(1) conclusive ly determine the disputed question, (2) resolve an important issue completely separate from the mer its of the action, and (3) be effectively unreviewable on appeal from a final judgment.” 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 i mmunity need not challenge the mer- its of the charge against hi m: his claim of immunity does not turn on his conduct’s legality. That difference ent ails another. Because it en- sures a defendant need not “answer for his conduct” in co urt at all, an immunity is in its “essence” an “e ntitlement not to stand trial.” Mitch- ell v. Forsyth, 472 U. S. 511, 525–526. A liabi lity defen se, by contrast, does not allow the defendant to escape legal proceedings, because it is through them that the asserted defe nse is addressed and liability fi- nally determined. And that divergence ma tters for Cohen ’s third con- dition, which requires that the orde r involve a right that “would be irretrievably lost absen t an immediate appeal.” Van Cauwenberghe, 486 U. S., at 524. Th e right not to stand tr ial is irretrievably los t once trial occurs, but the right to a finding of non-liability c an be effectively vindicated after tr ial, through reversal of an adverse final ju dgment. So, if a defendant asserts a li ability defense, Cohen is likely to block an immediate appeal; if he asserts an immu nity, Cohen will likely allow it. Pp. 3–7. (b) Does Yearsley offer federal contractors a merits defense or in- stead an immunity? Me nocal says a defense, b ecause Yearsley gives contractors on ly a way to s how th at their conduct complied with the law. GEO says an immunity—more sp ecifically, “deriv ative sovereign immunity”—where the Government’s own immunity extends to con- tractors who meet specified conditions. B rief for GEO 15. Yearsley provides a potential defense to liability, not an immunity from suit. In Yearsley, the Court held t hat a contractor that had flooded the Yearsleys’ property while performing work “a uthorized and

3 Cite as: 607 U. S. ___ (2026) Syllabus directed by the Government” was not liable to the landowner. 309 U.S., at 20. The Court explained that a c ontractor ac ting as an agent of the Government could be held lia ble for injurious conduct in only two circumstances: when “he exceeded his authority” or when that au- thority “was not validly conferr ed.” Id., at 21. The Court found neither circumstance obtained in Yearsley, because the contract or received a lawful authorization and st ayed within the bounds of the author ity given. That re asoning describes a defens e, not an immunity: Years- ley ’s protection runs out when the contra ctor may have violat ed the law—when the contractor either ac ted under an illegal authorization or exceeded the scop e of a legal one. Yearsley thus ensures that i t will never shield unlawful conduct, in the way that all immunities do. GEO’s contrary view—that it en joys “derivative sovereign immun- ity”—would put Yearsley in conflict with the gene ral rule that sover- eign immunity is not transferrable to gover nment 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 Corporati on, 258 U. S. 549, 568, or do its work, Keifer & Keifer v. Reconstruction Finance Cor- poration, 306 U. S. 381, 388, including by “reason of a contrac t” 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 go vernment agents can assert—whether always or sometimes—a “deriv ed” form of sovereign immunity. In- stead, sovereign immunity belongs alone to the Government. Pp. 7– 11. (c) Once Yearsle y is properly understood as a merits defense, the question before the Court almost an swers itself. Like the denial of other defenses, a district cou rt’s denial of Yearsley protection is not im- mediately appealable u nder §1291. Such a ruling is no t, as Cohen ’s third condition demands, “effectivel y unreviewable on appeal from a final judgment.” Van Cauwenb erghe, 486 U. S., at 522. The right th at a merits defense affords is to a finding of non-liability. And that right—unlike the right not to stand tr ial—is fully vindicable on appeal from a final judgment. Accordingly, the finality ru le of §1291 precludes interlocutory review of a Yearsley denial. Pp. 11–12. Affirmed and remanded. K AGAN, J., delivered the opinion of the Co urt, in which R OBERTS, C. J., and S OTOMAYOR, G ORSUCH, K AVANAUG H, B ARRETT, and J ACKSON, JJ., joined, and in which T HOMAS, J., joined as to Parts I an d III. T HOMAS, J., filed an opinion concurring in part a nd concurring in the judgment. A LITO, J., filed an opinion concurring in the judgment.

_________________ _________________ 1 Cite as: 607 U. S. ____ (2026) Opinion of the Court NOTICE: This opinion is s ubject to f ormal revision before publicat ion in the United States R eports. Readers are req uested to notify the Rep orter of Decisions, S upreme Court of the United Sta tes, Washing ton, D. C. 20543, pio@supr emecourt.gov, of any t ypographica l or other f ormal errors. SUPREME COURT OF THE UNI TED STATES No. 24–758 THE GEO GROUP, INC., PETITIONER v. ALEJANDRO MENOCAL, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT [February 25, 2026] J USTICE K AGAN delivered the opinion of the Court. In Yearsley v. W. A. Ross Cons tr. 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 “authorized and directed” the contractor to perform. Ra- ther, liability may attach only if the authorization was un- lawful 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 o rder 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 final judgment. So a ppellate review of such an or - der, as of most pretrial rulings, must await completion of the district court’s proceedings. I Petitioner GEO Group operat es a private detention facil- ity in Aurora, Colorado, under a contract with U. S. Immi- gration and Customs Enforcement (ICE). The facility holds individuals whose immigration proceedings are pending.

2 GEO GROUP, INC. v. MENOCAL Opinion of the Court Respondent Alejandro Menocal was detained there in 201 4. Soon afterward, he initiated this class action on behalf of the Aurora 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 de- tainee’s failure to perform his assigned tasks led to escalat- ing sanctions, up to 72 hours in solitary confinement. Sec- ond, the so-called Voluntary Work Program offered $1 per day to detainees for other kind s of needed work, such as preparing food and doing laundry. Menocal’s complaint al- leged that the former policy violated a federal bar on forced labor and that the latter breached Colorado’s prohibition on unjust enrichment. Following discovery, the District Court addres sed 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 re ad 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 contractual obligations.” 635 F. Supp. 3d 1151, 1173 (Colo. 2022). So the Yearsley do c- trine, the District Court concluded, did not relieve GEO of legal responsibility. Instead, a trial would be necessary to address whether GEO’s policie s violated the referenced bans on forced labor or unjust enrichment. GEO immediately filed an appeal, but the Court of Ap- peals for the Tenth Circuit dismissed it for lack of jurisdic- tion. See 2024 WL 4544184 (Oct. 22, 2024). Appellate ju- risdiction, the court explained, seldom extends to an order that does not terminate the litigation at issue. Such an

3 Cite as: 607 U. S. ____ (2026) Opinion of the Court order qualifies for interlocutory review only if it satisfies three conditions deriving from this Court’s decision in Co- hen v. Beneficial 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 first or third Cohen conditions because it con- cluded that a Yearsley denial flunked the second: Such a ruling is not (as Cohen demands) “completely separate from the merits” of the suit. 2024 WL 4544184, *7. That is be- cause, the court reasoned, an inquiry into what the Govern- ment instructed the contractor t o do is relevant to both Yearsley ’s application and the “la wfulness of the contrac- tor’s challenged actions.” Id., at *8. We granted certiorari, 605 U. S. 968 (2025), to r esol ve whether a pretrial order denying Yearsley protection to a government contractor is imme diately 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 effective ly unreviewable on appeal from a final judgment. II “Finality as a condition of review is an historic character- istic of federal appellate procedure.” Cobbledick v. United States, 309 U. S. 323, 324 (1940). Originating in the First Judiciary Act of 1789, the finality requirement is now codi- fied in 28 U. S. C. §1291. The courts of appeals, that section provides, have jurisdiction over appeals from “final deci- sions of the district courts.” And a decision generally is “fi- nal” 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 judg- ment.” Ritzen Group, Inc. v. Jack son Masonry, LLC, 589 U. S. 35, 37–38 (2020). That final-judgment rule, by pre- venting piecemeal appeals, “promotes the efficient admin- istration of justice” and “p reserves the proper balance

4 GEO GROUP, INC. v. MENOCAL Opinion of the Court between trial and appellate courts.” Microsoft Corp. v. Baker, 582 U. S. 23, 36–37 (2017). For a “small class” of decisions, however, the finality 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 “final” certain decisions that do not end a case. Mohawk Industries, Inc. v. Carpen ter, 558 U. S. 100, 106 (2009) (quoting Cohen, 337 U. S., at 546). We iden- tify those decisions by cate gory, not case-specific circum - stances. 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 “finally determine[s] claims of right separa- ble 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 de- ferred.” 337 U. S., at 546. That so-called collateral-order doctrine, we have since underscored, is “narrow,” “strin- gent,” and of “modest scope.” Digital Equipment Corp. v. Desktop Direct, Inc., 51 1 U. S. 863, 868 (1994); Will v. Hal- lock, 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 final 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, appealability under Cohen will generally turn 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 block an immediate appeal; if an immunity, Cohen will

5 Cite as: 607 U. S. ____ (2026) Opinion of the Court likely allow it. To show why, we describe below the differ- ence between a merits defense and an immunity; what that difference entails for the right to avoid trial; and how that right matters in applying the thi rd Cohen condition. Once that is done, it becomes clear why, as later described, the parties here mainly contest whether Yearsley offers an im- munity or just a merits defense. See infra, at 7–8. 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 other- wise, why under the law he did nothing wrong. And so, th at defendant says, he should not be found liable: Because he obeyed the law, he should not, for example, have to pay damages. 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 defendant need never say he followed the law, because his claim of immunity does no t turn on his conduct’s legal- ity. “[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) regardless 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 ex ists outside this dichotomy: a non- merits-based defense that also is not an immunity. On occasion, this Court has decided that a defense, alth ough barring suit irrespective of the merits, still fails to qua lify as an immunity bec ause it does not serve sufficiently “weighty pu blic objective[s].” Will v. Hallock, 546 U. S. 345, 353 (2006) (so holding with respect to th e Federal Tort Claims Act’s judg - ment bar). That “public interest” wr inkle, however, never arises if the defense is on the merits—which, as we will explain, is the case here. 2 Qualified immunity is, in the respec t relevant here, the same. That doctrine shields a defendan t even when the claim again st him “in fact has merit”—or otherwise said, even wh en he violated the law—so long as the law at that time was not “clearly established.” Camreta v. Greene,

6 GEO GROUP, INC. v. MENOCAL Opinion of the Court That difference between a merits defense and an immun- ity entails another: The latter, but not the former, is in its “essence” an “entitlement not to stand trial.” Mitchell, 472 U. S., at 525. Because an immunity applies irrespective of the merits, the protection it offe rs is not a simple finding of non-liability. Rather, the immunity ensures that the de - fendant need not “answer for his conduct” in court at all— that he avoids, in addition to liability, all the usual “bur- dens of litigation,” including a trial. Id., at 525–526. And so we typically describe the protection in just that way: as an immunity “ from suit.” Id., at 526 (emphasis in original); see, e. g., Thacker v. TVA, 587 U. S. 218, 221 (2019); Jam v. International Finance Corp., 586 U. S. 199, 2 02 (2019). A “mere defense” to liability, as we have noted, offers some- thing different, and of lesser value. Mitchell, 472 U. S., at 526. Because it establishes that the defendant acted law- fully, a valid defense leads to a judgment of non-liab ility. But it does not allow the defendant to escape the varied ri- gors and costs of legal proceedings. Indeed, it is in and through those proceedings that the asserted defense is ad- dressed and liability finally determined. And that divergence—in whether the defendant pos- sesses a right not to stand trial—matters for the third Co- hen condition. Again, that conditi on states that a non-ter- minal order may be appealed when issued only if it is “effectively unreviewable on appe al from a final judgment.” Van Cauwenberghe, 486 U. S., at 522; see supra, at 4. For that to be true, we have explained, the order must involve a right that “would be irretrievably lost absent an immedi- ate appeal.” Van Cauwenberghe, 486 U. S., at 524. The right to avoid trial fits that de scription. It is irretrievably lost once trial occurs, even su pposing the defendant were to —————— 563 U. S. 692, 705 (2011). “Like other forms of immunity,” th en, quali- fied immunity offers protection “even when [the defendant] acts unlaw- fully.” Brief for United States as Amicus C uriae 23.

7 Cite as: 607 U. S. ____ (2026) Opinion of the Court prevail on the merits. And so, in the ordinary case, the de- nial of an immunity is im mediately appealable. See ibid.; Abney, 431 U. S., at 659–660. But the right to a finding of non-liability stands on a different footing: It can be effec- tively vindicated after a trial has occurred, through the re- versal of an adverse final judgment. And so the denial of a merits defense is generally appealable only on ce 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 distinctio n 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 a nd Sewer Authori ty v. Metcalf & Eddy, Inc., 506 U. S. 139, 144 (1993) (“Once it is establi shed that” a State is “immune from suit in federal court, it follows that the elements of the Cohen collateral order doctrine are satisfied”). Recall that Cohen ’s second condition, on which the Court of Appeals relied, de- mands that the order “resolve an important issue completely separat e from the merits of the action.” Van Cauwenberghe v. Biard, 486 U. S. 517, 522 (1988); see supra, at 4. A decision on a defense, addressing the legality of the defendant’s conduct, g oes d irectly to the suit’s merits— whereas a decision on an immunity, a pplying regardless of that conduct ’s legality, does not. Similarly for the first condition, which is that the or- der “conclusively determine the disputed question.” Van Cauwe nberghe, 486 U. S., at 522. Wh en a defense turns on con tested facts, as is often true, a pretrial order de nying it functi ons only to defer its resolution until trial. By contrast, we have held, a pretrial denial of an immunity always acts as a “fully consummated decisi on” because nothing can then happen to avert “the trial the defend ant maintains is barred.” Mitchell v. For- syth, 472 U. S. 511, 527 (1985) (quotin g Abney v. United States, 431 U. S. 651, 659 (1977)).

8 GEO GROUP, INC. v. MENOCAL Opinion of the Court merits defense or instead an immunity. Menocal (sup- ported by the United States as amicus curia e) says a de- fense, because Yearsley gives contractors only a way to show that their conduct complied with the law. GEO says an im- munity—more specifically, “derivative sovereign immun- ity.” Brief for GEO 15. Under Yea rsley, GEO contends, the Government’s own immunity extends to contractors who meet specified conditions, thereby giving them the “right not to stand trial.” Brief for GEO 15. So which is it—a de- fense or an immunity? Yearsley involved a suit by landowners against a federal contractor for flooding their property. The Government had hired the contractor to redire ct the Missouri River in order to improve its navigation. The construction company, as specified 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 co n- tractor acting as an agent of th e 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 flood the Yearsleys’ land, because the Government itself possessed that legal right and had properly delegated it by contra ct. Id., at 21–22. And as to the first, the Court concluded that all the company’s work had stayed within the bounds of the authority given: The Government had provided instruc- tions, and the contractor had merely “execut[ed] its will.”

9 Cite as: 607 U. S. ____ (2026) Opinion of the Court Id., at 20–21. Given both those facts—the Government’s lawful authorization and the contractor’s co mpliance with it—the Court could see “no gro und for holding [the contrac- tor] liable.” 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 le- gal bounds. So in invoking Yearsley, the contractor is mak- ing the argument of a merits defense—that it is not liable because it has complied with the law. See supra, at 5. Con- versely, Yea rsley ’s protection runs out when th e contractor 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 5. In short, because Years- ley protects a contractor only when—and only because—it has acted lawfully, Yearsley operates as a defense to liabil- ity on the merits. And that is consistent with all Yearsley ’s language. The decision never refers to an “immunity,” or otherwise 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 cont rary view would put Yearsley in conflict with the general rule that sovereign immunity is not transferrable to agents, including contractors, of a gov- ernment. As Justice Holmes once explained, the Federal Government’s immunity from a suit (absent a statute providing otherwise) “does no t extend to those that act[] in its name.” Sloan Shipyards Corp. v. United States Ship - ping Bd. Emergency Fleet Corpor ation, 258 U. S. 549, 5 68 (1922). The Court repeated that precept in the Term just before Yearsley: “[T]he government does not become the conduit of its immunity in suits against its agents” just be- cause “they do [the government’s] work.” Keifer & Keifer v.

10 GEO GROUP, INC. v. MENOCAL Opinion of the Court Reconstruction Finance Corporation, 306 U. S. 381, 388 (1939). Rather, the “exceptional freedom from legal respon- sibility” that sovereign immunity offers is “confined” to the sovereign entity itself. Ibid. Or again, a few Terms after Yearsley: A private contractor cannot obtain “[i]mmunit y from suit” by “reason of a co ntract” it made with the Gov- ernment. 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 “uncondi- tional” sovereign immunity, not the (supposed) “derivative sovereign immunity” Yearsley offers, which is conditioned on compliance with the Governme nt’s lawful directives. Re- ply Brief 6–7. But the proposed distinction is strained. The whole thrust of the decisions is to deny that government agents can assert—whether always or sometimes—a “de- rived” form of sovereign immunity. Rather, the Court in - sisted, sovereign immunity belongs alone to the Govern- ment. And another, pre- Yearsley decision proves the point, by relegating a state agent that had asserted sovereign im- munity 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 flooded a person’s land. The State itself, the Court noted, would have had “immunity from [a] suit” based on such conduct. 221 U. S., at 642. But an agent working on the State’s behalf could not “avail itself ” of that special “exemption” from “judicial process.” Id., at 642, 645. “[I]mmunity from suit,” the Court explained, “is a high at- tribute of sovereignty—a prer ogative 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. Alt- hough the agent was “not exempt from suit,” it could “suc- cessfully defend” against the charges by showi ng the “law- ful authority under which [it] acted.” Id., at 643. Those

11 Cite as: 607 U. S. ____ (2026) Opinion of the Court terms evoke the ones Yearsley used later. See 309 U. S., at 22 (precluding liability for a co ntractor “acting under” “val- idly conferred” authority); supra, at 8. And they function not, as GEO posits, to condit ion 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 final judgment.” Van Cauwenberghe, 486 U. S., at 522. The right that a merits defense affords is to a finding of non- liability. And that right—unlike the right not to stand trial—is fully vindicable on appeal from a final judgment. See Swint v. Chambers County Comm’n, 514 U. S. 35, 43 (1995); supra, at 6. All an appellate court need do at that —————— 4 GEO counters that two of our decisions refer to Yearsl ey as offering “immunity,” see Brief for GEO 17, 23, but that argument makes far too much of one piece of loose la nguage. The firs t cited case, Brady v. Roo- sevelt S. S. Co., 317 U. S. 575 (1943), mainly cuts again st GEO. As noted above, the Court there reject ed the view that a government contractor obtains “[i]mmunity from suit” by vi rtue of its contractual relation. Id., at 583; see supra, at 10. The Court then turned to Yearsley, finding it not to apply because the suit alleged neglig ent conduct, outside what the Government had authorized. In that half-paragraph, the decision once refers to Yearsley as providin g a “certain immunity.” 317 U. S., at 583. But it apparently used that term in a colloquial sense, as something of a synonym for “prot ection.” The Court’s fuller description of Yearsley ex- plains that it relieves the cont ract or 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 de cision merely quotes the imprecise phrase in Brady on the way to rejecting a nother contract or’s claim (eve n more expansive than GEO’s) to shar e in the Government’s sovereign im- munity. 577 U. S., at 166.

12 GEO GROUP, INC. v. MENOCAL Opinion of the Court point is reverse the erroneous liabi lity finding. So the final- ity rule of §1291 precludes interlocutory review of a Years- ley 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 appe al the District Court’s rejec- tion of its asserted Yearsley defense. But GEO must wai t until then. A Yearsley denial is not appealable bef ore the trial court’s proceedings have ended. We therefore affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. —————— 5 This holding still allows review of a given Yearsley denial by means of §1292(b)’s separate appeal -certification process. Un der that provision, a district court may find t hat the special difficulty and importance of a n otherwise unappealable order counsels in favor of immediate review, and an appellate court may accept that determination. Here, thou gh, the District Court saw no reason to act u nder §1292(b).

_________________ _________________ 1 Cite as: 607 U. S. ____ (2026) Opinion of T HOMAS, J. SUPREME COURT OF THE UNI TED STATES No. 24–758 THE GEO GROUP, INC., PETITIONER v. ALEJANDRO MENOCAL, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT [February 25, 2026] J USTICE T HOMAS, 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 Year sley 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 8–9. Orders rejecting Yearsley defenses 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 interlocu- tory appeal here, the Court co rrectly affirms the Tenth Cir- cuit’s dismissal. I do not join Part II because “[w]e need not, and in my view should not, further justify our holding by applying” the collateral-orde r doctrine established by Co- hen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949). Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 115 (2009) (T HOMAS, J., concurring in part and concur- ring in jud gment). I rema in of the view that we should no t expand the Cohen collateral order doctrine beyond orders that our precedents have alre ady held to be immediately appealable. The Cohen collateral-order doctrine, which allows federal courts to exercise appellate ju risdiction over certain inter- locutory orders, conflicts with Congress’s authority over federal appellate jurisdiction. U. S. Const., Art. I, §8, cl. 9;

2 GEO GROUP, INC. v. MENOCAL Opinion of T HOMAS, J. Art. III, §1. By statute, parties generally cannot appeal be- fore final judgment. See 28 U. S. C. §1291; ante, at 3–4. Congress has established certain exceptions to that final- judgment rule that allow parti es to appeal some interlocu- tory orders immediately. E. g., §1292(a)(1). It has also au- thorized this Court to create further exceptions through rulemaking. §1292(e). Cohen ’s collateral-order doctrine al- lows judges to create additional exceptions by judicial opin- ion, which bypasses “ ‘Congress’s designation of the rule- making process as the way to define or refine when a district court ruling is “final” and when an interlocutory or- der is appealable.’ ” Mohawk Industries, 558 U. S., at 114– 115 (opinion of T HOMAS, J.) (quoting Swint v. Chambers County Comm’n, 514 U. S. 35, 48 (1995)). For that reason, if an interlocutory order “is not on all fours with orders we previously have held to be appealable under the collateral order doctrine,” it should not be immediately appealable. Mohawk Industries, 558 U. S., at 115 (opinion of T HOMAS, J.).

_________________ _________________ 1 Cite as: 607 U. S. ____ (2026) A LITO, J., concurring in judgment SUPREME COURT OF THE UNI TED STATES No. 24–758 THE GEO GROUP, INC., PETITIONER v. ALEJANDRO MENOCAL, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT [February 25, 2026] J USTICE A LITO, concurring in the judgment. I agree with the Court that the defense conferred by Yearsley v. W. A. Ross Constr. Co., 309 U. S. 18 (1940), is not an “immunity from suit.” I therefore ag ree that an or- der 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 5. Under the collateral-order do ctrine, defendants may some- times appeal the denial of a defense immediately when do- ing so is necessary to vindicate important constitutional or public-policy interests. And this rule holds true even if the defense at issue turns on the legality of the defendant’s con- duct. Thus, I cannot join the opinion of the Court, but I concur in the judgment because deferring appellate review of Yearsley rulings until final judgment does not imperil im- portant constitutional or public-policy interests. I Since 1789, Congress has generally limited the universe of appealable orders to “final decrees and judgments.” Act of Sept. 24, 1789, 1 Stat. 84. Today, this “final-judgment rule” limits the jurisdiction of federal courts of appeals. See 28 U. S. C. §1291. The Court has long given this limit a “practical rather than a technical construction.” Cohen v.

2 GEO GROUP, INC. v. MENOCAL A LITO, J., concurring in judgment Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949). Consistent with that approach, our decision in Cohen held that certain interlocutory orders—now known as collateral orders—are sufficiently “final ” that a party may appeal them before litigation reaches final 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 final judgment.” Coopers & Lybrand v. Livesay, 437 U. S. 463, 4 68 (1978). Whether a given order satisfies 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 satisfied fo r the “entire category” of or- ders. Digital Equipment Corp. v. Desktop Direct, Inc., 51 1 U. S. 863, 868 (1994). A Initially, this Court applied the “effectively unreviewa- ble” requirement to capture or ders that would become moot by the time of final judgment. See Cohen, 337 U. S., at 546. For those orders, a strict application of the final-judgment rule “would practically defeat the right to any review at all.” Cobbledick v. United States, 309 U. S. 323, 324–325 (1940). We first applied this reasoning in Cohen, which involved a district-court order that excuse d the plaintiffs from a litiga- tion-bond requirement. 337 U. S., at 544–547. Applicable state law required the plaintiffs to post such a bond to se- cure their obligation to pay the defendant’s litigation ex- penses and attorney’s fees if their claims failed. Cohen held that the order excusing the plaintiffs from posting that bond was immediately appealabl e because it would “not be merged in final judgment.” Id., at 546. Regardless of who prevailed at final judgment, the question whether the

3 Cite as: 607 U. S. ____ (2026) A LITO, J., concurring in judgment plaintiffs had to post a bond would be moot. If the defend- ant prevailed, an appeal would not relieve it from the plain- tiffs’ failure to post a bond. And if the plaintiffs prevailed, the defendant would not be en titled to recover its legal costs. Thus, if orders deny ing requests for litigation bonds were not subject to immediat e appeal, those orders would never receive appellate review. This conception of the co llateral-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 fo reign defendant. In this re- spect, 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 attach- ment of the vessel. If the libelants in Swift did not prevail at final judgment, the court’s vacatur of the attachment or- der would become moot. And if the libelants did prevail, any appellate review of the attachment issue would be an “empty rite,” as the vessel wo uld 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 final judgment in a criminal case, the conditions governing 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 oc- cur before final judgment.

4 GEO GROUP, INC. v. MENOCAL A LITO, J., concurring in judgment In sum, our early collateral-order cases applied the “ef- fectively unreviewable” requirement narrowly. It captured those orders that would be unreviewable on appeal from a final judgment on account of mootness. B Over the ensuing decades, the Court expanded its appli- cation of the “effectively unrev iewable” requirement to in- clude orders that undoubtedly would not become moot by final 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 sat- isfied Cohen even though these protections could be “vindi- cated on an appeal following final judgment.” Abney, 431 U. S., at 660. Like most criminal-law defenses, double-jeop- ardy and speech-or-debate issues merge into the final judg- ment, 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 fr om criminal liability. They were instead “guarantee[s] against being ... put to trial ” at all. Ab ney, 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 omit- ted)). Thus, although a cou rt could review these defenses on appeal from a final judgment, a court could not fully vin- dicate their protections at that time. By the time of final 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 sufficed to render the orders in Abney and Helstoski “effectively

5 Cite as: 607 U. S. ____ (2026) A LITO, J., concurring in judgment unreviewable” on appeal fr om a final judgment. See Abney, 431 U. S., at 662. This doctrinal development had important implications for our collateral-order jurisprudence. Under Abney an d Helstoski ’s logic, once a court designates a defense as an “immunity from suit,” that defense satisfies the third col- lateral-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 collat- eral-order requirements. See ante, at 7, n. 1. The denial of an immunity satisfies the first criterion because it “conclu- sively determine[s]” that a defendant may go to trial. Coop- ers & 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 conc ep- tually distinct from the merits,” so an order denying an i m- munity claim satisfies the second requirement. Mitchell v. Forsyth, 472 U. S. 511, 527 (1985). For these reasons, fed- eral courts have consistently held that denials of an immun- ity are collateral orders subject to immediate appeal. See, e. g., Nixon v. Fitzgerald, 457 U. S. 731, 742 (1982) (Presi- dential civil immunity); Mitchell, 472 U. S., at 530 (quali- fied immunity); Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 143 (1993) (state and territorial sovereign immunity); Kilburn v. Socialist Peo- ple’s Libyan 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 A s- phalt Corp. v. United States, 489 U. S. 794, 801 (1989). Af- ter all, “virtually every right that could be enforced appro- priately by pretrial dismissal” could be loosely described as an immunity from suit. Digital Equipment, 511 U. S., a t 873. But treating every such right as an immunity would

6 GEO GROUP, INC. v. MENOCAL A LITO, J., concurring in judgment permit the “narrow” collatera l-order doctrine to “swallow” the final judgment rule in “virtually every case.” Id., at 868, 873 (internal quotation marks omitted). Our Court has therefore recognized the need to distinguish “between a right not to be tried and a ri ght 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 consti- tutes 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. Specifically, we explained in Will v. Hallock, 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 al- lowing 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 rea- son” that a right fails the third requirement of the collat- eral-order doctrine “is, quite simply, that the law does not deem the right important enough ”). Our collateral-order decisions reflect 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 efficiency of government and the initiative of its officials, respecting a State’s dignitary interests, 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 allow- ing 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 justified immediate appeals of orders denying qual- ified immunity); Puerto Rico Aqueduct and Sewer Author- ity, 506 U. S., at 146 (allowing an appeal of an order

7 Cite as: 607 U. S. ____ (2026) A LITO, J., concurring in judgment denying sovereign immunity to “ ‘prevent the indignity of subjecting a State to the coercive process of judicial tribu- nals’ ”). In contrast, we have declined to designate defenses as immunities when postponing appellate review to final judgment would not imperil important interests. See, e. g., Will, 546 U. S., at 353 (holding that the interest in shorten- ing troublesome litigation is insufficient to treat a defense as an immunity); Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 108–113 (2009) (acknowledging that the attor- ney-client privilege serves important public interests but declining to designate it as an immunity because deferring appeals would not meaningfully 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 interl ocutory 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 (B ARRETT, J., concurring in part). The test for determining whether a de- fense constitutes an immunity therefore remains keyed to the interests that an immediate appeal would vindicate. If postponing review of a wrongly denied defense would un- dermine important constitutional or policy interests, that defense constitutes an immunity. II Under 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 important constituti onal or public-policy inter- ests. A As the majority correctly explains, Yearsley shields de- fendants from damages actions for conduct that federal law

8 GEO GROUP, INC. v. MENOCAL A LITO, J., concurring in judgment 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 applica- bility until final judgment would not create significant sep- aration-of-powers problems. To be sure, the possibility that courts might impose liability for conduct that Congress au- thorized presents some conflict between those two branches of Government. Likewise, in correct contractor-liability ad- judications 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 Govern- ment contractor. Moreover, these risks pale in comparison to the separation-of-powers concerns that motivated the ap- plication of the collateral-order doctrine in other immunity contexts. See, e. g., Hel stoski, 442 U. S., at 502 (concerning a Congressman who was exposed to criminal liability based on his decision to introduce a bill in the House of Represent- atives). Yearsley do es not implicate sovere ign-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 fit. Sovereign immun- ity protects governments from the indignity of being sub- jected to a court’s juris diction. Puerto Rico Aqueduct and Sewer Authority, 506 U. S., at 146. We have never de- scribed 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 jurisdic tion over a case before de- termining whether Yearsley applied). Rather, Yearsley merely shields contractors from exposure for conduct that federal law authorized. I therefore agree with the majority

9 Cite as: 607 U. S. ____ (2026) A LITO, J., concurring in judgment that the Yearsley doctrine “derives” from the Government’s lawmaking authority, not its sovereign immunity. See ante, at 9–10; cf. Campbell-Ewald Co., 577 U. S., at 166– 167; Sloan Shipyards Corp. v. United States Shipping Bd. Emergency Fleet Corporation, 258 U. S. 549, 566–567 (1922). Last, unlike with qualified immunity, allowing immedi- ate appeals of Yearsley denials is not necessary to prevent overdeterrence, timidity, and distraction in Government service. That is not to say that th ese concerns are entirely absent when plaintiffs bring damages actions against Gov- ernment contractors. As th is Court recognized in Filarsky v. Deli a, 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 defend- ant’s] particular relationship with the government.” Id., at 389–392. But our doctrine already accommodates these concerns by allowing contra ctors to invoke qualified im- munity. Ibid.; Campbell-Ewald Co., 577 U. S., at 167. In- deed, qualified immunity provides a greater protection to contractors than Yearsley does. Whereas Yearsley shields only those contractors who act within the bounds of their legal authorization, qualified immunity protects “all but the plainly incompetent 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 qualified immunity. Mitchell, 472 U. S., at 530. Because qualified immunity already vindicates the public interest in avoiding overdeterrence, timidity, and distraction among contractors, th ere is no overriding inter- est in also allowing immediate appeals of orders denying Yearsley ’s more modest protections.* Cf. Mohawk —————— *Although Government contractors ma y generally assert qualified im- munity, this Court has held that “private prison guards” may not in Rev.

10 GEO GROUP, INC. v. MENOCAL A LITO, J., concurring in judgment Industries, Inc., 558 U. S., at 109–112 (declining to treat the attorney-client privilege as an immunity because other “es- tablished mechanisms for appell ate review” were availa- ble). In sum, allowing immediate appeals of orders denying Yearsley defenses is not necessary to vindicate any im- portant constitutional or pub lic-policy interests. Accord- ingly, the Yearsley doctrine is not an immunity from suit. And because Yearsley issues can be reviewed on an appeal from a final 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, at 5. Because the Yearsley doctrine does, the majority co n- cludes that it fails to satisfy the third collateral-order r e- quirement. That analysis is oversimplified. 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 —————— Stat. §1979, 42 U. S. C. §1983 cases. See Richardson v. McKni ght, 521 U. S. 399, 412 (1997). Separately, this Court has not decided whether corporate-contractor defenda nts like GEO Group may invoke qualified immunity. But see United Pet Supply, Inc. v. Chattanooga, 768 F. 3d 464, 484, n. 3 (CA6 2014) (noting that the Six th Circuit has entertaine d corporate defendants’ asser tions of qualified immunity). Perhaps the public interest would be well-served by allowing appeals of orders deny- ing Yearsley defenses to those defendants who cannot invoke qualified immunity. Even so, our doctrine requires us to decide whether Yearsley denials are collateral orders a s a category, not “a s applied” to particular defendants. If, however, most defendants who invoke Yea rsley could not invoke qualified immunity, the collate ral-order analysis mig ht be differ- ent. For example, if corporat e contractors could never invoke qua lified immunity, then there would be a stronger argument that denials of Yearsley defenses should be immediately appealable.

11 Cite as: 607 U. S. ____ (2026) A LITO, J., concurring in judgment defense and a defendant’s conduct can bear on whether an order is “ ‘separate from the merits of the action.’ ” Ante, at 7, n. 1; 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 (cod- ifying foreign sovereign immuni ty 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. Fo r instance, qualified 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 qualified-immunity defense 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 qualified 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 vin- dictive prosecution qualifies as an immunity from suit, even though neither defense concer ns 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 to enforce a settlement agreement against a plaintiff ’s claims was not a collateral order). In short, although the majority’s focus—whether a de- fense turns on the legality of the defendant’s conduct—can

12 GEO GROUP, INC. v. MENOCAL A LITO, J., concurring in judgment be relevant in the collateral-order analysis, it is not dispos- itive of whether a defense constitutes an immunity. * * * Because postponing appellate review of Yearsley issues until final judgment would not imperil important constitu- tional or public-policy interests, I concur in the judgment of the Court.