The Supreme Court should reject GEO Group’s call to expand sovereign immunity to all government contractors, according to an amicus brief filed by CREW.

GEO Group has a contract with ICE to run the Aurora Immigration Processing Center in Colorado, where the federal government holds detained immigrants pending the resolution of their immigration proceedings. In 2014, detainees filed a class action against GEO under the Trafficking Victims Protection Act and Colorado state law against unjust enrichment, alleging that GEO unlawfully required detainees to do unpaid sanitation and janitorial work in the detention center  and punished them with revocation of privileges and solitary confinement if they refused. The plaintiffs also alleged that GEO instituted a work program that was nominally “voluntary” but paid only $1 per day, which the detainees urgently needed because GEO was not providing sufficient access to food, toiletries, or telephones.

In district court, GEO argued that it could not be held liable because its treatment of detainees was directed by its ICE contract. The district court heard evidence on that defense and rejected it, determining that GEO would be liable for any damages it is found to have caused at trial.  GEO immediately appealed to the 10th Circuit. GEO tried to justify appealing immediately (instead of waiting until after trial) by invoking the collateral order doctrine, which is a legal principle that allows immediate appeals of important rulings that are separate from the merits of the case and will so badly harm a party that the appeal cannot wait until after the case is over. To convince the 10th Circuit that its appeal had to be heard immediately, GEO contended that government contractors have “derivative sovereign immunity,” which would prevent them from being sued at all for work done pursuant to a government contract and put them on the same legal footing as the government itself.  

The Supreme Court has now taken up the question of whether an order denying a government contractor’s claim of derivative sovereign immunity is immediately appealable under the collateral-order doctrine. 

CREW’s amicus brief argues that the Supreme Court does not need to weigh in on GEO’s proposed redefinition of sovereign immunity, but if it does so, it should reject this redefinition. Government contractors cannot claim sovereign immunity because they are separate from the government and barred from exercising sovereign authority in the first place. As the brief states, “the Constitution instills sovereign authority in the federal government alone for the singular purpose of pursuing the public interest unencumbered by the corrosive effect of private interest.” Further undercutting GEO’s claims to sovereign immunity, the federal government and federal law have long barred government contractors from performing “inherently governmental functions” which include those that “involve the exercise of sovereign powers of the United States” or “requires discretion” that “commits the government to a course of action.” Instead, federal law keeps contractors at arm’s length through extensive rules and regulations that protect and serve the public interest, manage and prevent conflicts of interest and penalizing misconduct, all of which is overseen by the Congress and the executive branch. 

The Constitution and federal law recognizes that contractors are external private parties driven by their own financial interest to provide services to the government, not extensions of the government. For these reasons, if the Supreme Court chooses to weigh in on whether government contractors have sovereign immunity, it should reject this claim. 

Read the brief here.

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