Tenth Circuit Denies Jurisdiction in Interlocutory Appeal of Derivative Sovereign Immunity
In Menocal v. GEO Group, Inc, No. 22-1409, 2024 WL 4544184 (10th Cir. Oct. 22, 2024), the Tenth Circuit determined it lacked jurisdiction for interlocutory review of a denial of derivative sovereign immunity. Derivative immunity is determined under a two-factor test known as the Yearsley doctrine, which the United States Supreme Court announced in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940). Under the Yearsley Doctrine, the first prong of the test focuses on whether the government legally conferred its authority to a contractor. The second prong focuses on the government’s specific instructions to a contractor.
In Menocal, the Tenth Circuit determined noted review of denial of derivative immunity turns on whether authority was validly conferred by the government and whether the government directed the complained of actions. Therefore, factual questions regarding what the government did and did not specifically direct would be at the heart of both the Yearsley inquiry and the merits of the case. The Tenth Circuit also noted that denial of derivative sovereign immunity was fundamentally different that a denial of qualified immunity, which are routinely considered on an interlocutory basis, because appeals of qualified immunity resolve abstract issues of law where plaintiff’s version of the facts is routinely accepted for purposes of the court’s legal analysis. Accordingly, the Court determined it lacked jurisdiction for the interlocutory appeal because review of an order denying derivative sovereign immunity under Yearsley cannot be done separate from a review of the merits of the underlying case.
Read the entire case at: https://law.justia.com/cases/federal/appellate-courts/ca10/22-1409/22-1409-2024-10-22.html.