New Cert Petition on Derivative Sovereign Immunity Appeals
A new cert petition asks whether the denial of derivative sovereign immunity is immediately appealable via the collateral-order doctrine.
Derivative sovereign immunity (also sometimes referred to as the Yearsly doctrine) is a defense that government contractors sometimes raise to defeat claims stemming from work the contractors did for the government. The courts of appeals have split on whether a denial of that defense is immediately appealable.
I’ve covered a few of those decisions in prior roundups. Among them is the Sixth Circuit’s decision in ACT, Inc. v. Worldwide Interactive Network, Inc., which I thought focused too much whether a defense is an immunity and overlooked the rest of the collateral-order doctrine. There’s also the Ninth Circuit’s decision in Childs v. San Diego Family Housing LLC, in which the court said that the interests protected by derivative sovereign immunity aren’t sufficiently important to be effectively unreviewable in normal post-final-judgment appeal. And then there’s the Tenth Circuit’s decision in Menocal v. GEO Group, Inc., from which this petition stems. I think the Tenth Circuit’s decision is particularly interesting, as the court said that the defense is not sufficiently separate from the merits to be appealable via the collateral-order doctrine.
The case is GEO Group, Inc. v. Menocal. The response is due February 18, 2025. Also of note, the Supreme Court denied cert on this issue a few years ago.
Petition for Writ of Certiorari, GEO Group, Inc. v. Menocal, (Jan. 13, 2025), available at the Supreme Court and Westlaw
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