The GEO Group, Inc. v. Menocal

When immigration detainees banded together to challenge a private prison company that forced them to work without pay, the company claimed it was immune from suit. And when a court rejected that claim, the company tried to take an immediate appeal, halting the litigation in its tracks. Because justice delayed is justice denied, the MacArthur Justice Center is fighting to ensure that private contractors can’t slow down urgent cases with immediate, mid-litigation appeals. 

The GEO Group is a for-profit, publicly-traded company that operates private prisons, jails, and immigration detention facilities. By some accounts, it is the world’s second-largest private prison operator. The company extracts billions of dollars in revenue each year—yet it forced people confined in its immigration detention center in Colorado to perform janitorial work for no pay, and additional labor for just $1 a day. 

Over a decade ago, one of those people, Alejandro Menocal, sued GEO on behalf of a class of detainees at GEO’s Colorado facility. Mr. Menocal alleged that GEO’s coerced labor practices violated the federal Trafficking Victims Protection Act and Colorado’s prohibition on unjust enrichment. GEO’s response was to delay: It sought multiple stays of the litigation and multiple “interlocutory” appeals (i.e., immediate appeals before a case reaches a final judgment). As a result, Mr. Menocal’s case has proceeded at a snail’s pace. 

GEO’s latest attempt at delay centers on what it calls “derivative sovereign immunity.” Many decades ago, the Supreme Court created a defense for government contractors in a case called Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940). GEO claimed that under this defense, it couldn’t be held liable for forcing immigrant detainees to work—but the district court (in a thoroughly reasoned opinion) disagreed. So GEO tried to take another immediate appeal, and the U.S. Court of Appeals for the Tenth Circuit rejected GEO’s effort, holding that GEO’s Yearsley defense wasn’t subject to immediate appeal. At GEO’s urging, the Supreme Court agreed to decide the question. 

The MacArthur Justice Center, alongside the Institute for Justice and the Cato Institute, filed an amicus brief urging the Supreme Court to affirm the Tenth Circuit’s judgment. The amicus brief explains that although these three cross-ideological organizations do not see eye-to-eye on every issue, their experiences as litigators and advocates illustrate why GEO’s arguments are dead wrong. The amicus brief lays out why GEO’s view of the law would lead to delays, confusion, costs, and gamesmanship, to the detriment of litigants and courts alike.