Geo Group, Inc. v. Menocal · ¶20

When, as here, an order denies a pretrial request to dismiss, 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 likely allow it. To show why, we describe below the difference 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 third Cohen condition. Once that is done, it becomes clear why, as later described, the parties here mainly contest whether Yearsley offers an immunity or just a merits defense. See infra, at 447–448.

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