The Geo Grp. v. Newsom
| Decision Date | 26 September 2022 |
| Docket Number | 20-56172,20-56304, No. 20-56304 |
| Citation | 50 F.4th 745 |
| Court | U.S. Court of Appeals — Ninth Circuit |
| Parties | The Geo Group, Inc., Plaintiff-Appellant, v. Gavin Newsom, in his official capacity as Governor of the State of California; Rob Bonta, in his official capacity as Attorney General of the State of California, Defendants-Appellees, and United States of America, Plaintiff, and State of California, Defendant. United States of America, Plaintiff-Appellant and The Geo Group, Inc., Plaintiff v. Gavin Newsom, in his official capacity as Governor of the State of California; Rob Bonta, in his official capacity as Attorney General of the State of California; State of California, Defendants-Appellees |
Argued and Submitted En Banc June 21, 2022 Pasadena, California
Appeal from the United States District Court Nos 3:19-cv-02491-JLS-WVG, 3:20-cv-00154-JLS-WVG for the Southern District of California Janis L. Sammartino, District Judge Presiding
Mark B. Stern (argued), Daniel Tenny, and Katherine Twomey Allen Appellate Staff; Randy S. Grossman, Acting United States Attorney; Brian M. Boynton, Acting Assistant Attorney General; Civil Division, United States Department of Justice Washington, D.C.; for Plaintiff-Appellant United States of America.
Michael W. Kirk (argued), Charles J. Cooper, and Steven J. Lindsay, Cooper &Kirk PLLC, Washington, D.C.; Michael B. McClellan, Newmeyer &Dillion LLP, Newport Beach, California; Michael W. Battin, Navigato &Battin LLP, San Diego, California; for Plaintiff-Appellant The Geo Group, Inc.
Aimee Feinberg (argued) and Gabrielle D. Boutin, Deputy Attorneys General; Anthony R. Hakl, Supervising Deputy Attorney General; Thomas S. Patterson, Senior Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, Sacramento, California; for Defendants-Appellees.
Michael Kaufman (argued) and Jordan Wells, American Civil Liberties Union Foundation of Southern California, Los Angeles, California; Mark Fleming, National Immigrant Justice Center, Chicago, Illinois; Mary Van Houten Harper, National Immigrant Justice Center, Washington, D.C.; Eunice Hyunhye Cho, American Civil Liberties Union National Prison Project, Washington, D.C.; Vasudha Talla and Sean Riordan, American Civil Liberties Union Foundation of Northern California; Bardis Vakili and Monika Y. Langarica, American Civil Liberties Union Foundation of San Diego &Imperial Counties, San Diego, California; for Amici Curiae National Immigrant Justice Center, American Civil Liberties Union, ACLU of Southern California, ACLU of San Diego and Imperial Counties, and ACLU of Northern California.
Steven J. Wells, Alex P. Hontos, and Timothy J. Droske, Dorsey &Whitney LLP, Minneapolis, Minnesota, for Amicus Curiae Management &Training Corporation.
Garen N. Bostanian, Jason R. Litt, Rebecca G. Powell, and Anna J. Goodman, Horvitz &Levy LLP, Burbank, California, for Amicus Curiae Human Impact Partners.
Jaclyn Gonzalez and Hamid Yazdan Panah, Immigrant Defense Advocates, El Sobrante, California; Sayoni Maitra and Jamie Crook, Center for Gender &Refugee Studies, UC Hastings College of Law, San Francisco, California; Lisa Knox, California Collaborative for Immigrant Justice, San Francisco, California; Alison Pennington, Immigrant Legal Defense, Oakland, California; for Amici Curiae California Collaborative for Immigrant Justice, Center for Gender &Refugee Studies, Immigrant Defense Advocates, and Immigrant Legal Defense.
Sarah P. Alexander, Constantine Cannon LLP, San Francisco, California, for Amici Curiae Immigrant Legal Resource Center, Human Rights Watch, Freedom for Immigrants.
Lawrence J. Joseph, Washington, D.C.; Christopher J. Hajec, Director of Litigation, Immigration Reform Law Institute, Washington, D.C.; for Amicus Curiae Immigration Reform Law Institute.
Yvette M. Piacsek, National Federation of Federal Employees, International Association of Machinists, and Aerospace Workers, AFL-CIO, Washington, D.C., for Amicus Curiae National Federation of Federal Employees.
Nicholas D. Wanger, McDonald Lamond Canzoneri, Southborough, Massachusetts, for Amicus Curiae United Government Security Officers of America.
Before: Mary H. Murguia, Chief Judge, and Johnnie B. Rawlinson, Milan D. Smith, Jr., Sandra S. Ikuta, Jacqueline H. Nguyen, Paul J. Watford, John B. Owens, Ryan D. Nelson, Kenneth K. Lee, Danielle J. Forrest and Jennifer Sung, Circuit Judges.
The en banc court vacated the district court's denial of the United States' and The Geo Group, Inc.'s motion for preliminary injunctive relief, and held that California enacted Assembly Bill (AB) 32, which states that a "person shall not operate a private detention facility within the state," would give California a virtual power of review over Immigration and Customs Enforcement (ICE)'s detention decisions, in violation of the Supremacy Clause.
ICE has decided to rely almost exclusively on privately owned and operated facilities in California. Two such facilities are run by appellant The Geo Group, Inc. AB 32 would override the federal government's decision, pursuant to discretion conferred by Congress, to use private contractors to run its immigration detention facilities. The en banc court held that whether analyzed under intergovernmental immunity or preemption, California cannot exert this level of control over the federal government's detention operations. The en banc court remanded for further proceedings.
California argued that appellants' claims were not justiciable. California contends that any future injury is speculative because ICE may choose not to extend its contracts, and that any such injury is not imminent because it would not occur until at least 2024. The en banc court held that appellants' future injuries are not conjectural or hypothetical. Virtually all of ICE's detention capacity in California is in privately owned and operated facilities. ICE expects profound disruptions to its California operations from AB 32 because it plans to continue relying on private facilities. Because ICE's plans are in the near future and would plainly violate AB 32, appellants' injuries are also sufficiently imminent. The en banc court concluded that appellants' claims are justiciable.
The en banc court held that AB 32 would breach the core promise of the Supremacy Clause. To comply with California law, ICE would have to cease its ongoing immigration detention operations in California and adopt an entirely new approach in the state. This foundational limit on state power cannot be squared with the dramatic changes that AB 32 would require ICE to make.
The en banc court also examined how AB 32 fits within modern Supremacy Clause cases, which discuss two separate doctrines intergovernmental immunity and preemption. California argued that intergovernmental immunity never applies to a generally applicable state regulation of a federal contractor, even when the regulation would control federal operations. California also urged the court to apply the presumption against preemption and conclude that Congress did not speak clearly enough about privately run immigration detention facilities for AB 32 to be preempted. The en banc court held that California's argument failed at both steps. The en banc court was not persuaded that AB 32 cannot implicate intergovernmental immunity, even assuming it was drafted as a generally applicable regulation of federal contractors. The en banc court likewise disagreed with California's contention that AB 32 was not preempted. While the court has applied the presumption against preemption when state regulations have incidental effects in an area of federal interest, the court has never applied the presumption to a state law that would control federal operations. The en banc court highly doubted that the presumption against preemption applied in this case. Without the presumption against preemption, there was little doubt that AB 32 would be preempted. The en banc court held that AB 32 is preempted.
The en banc court held that appellants are likely to prevail on their claim that AB 32 violates the Supremacy Clause as to ICE-contracted facilities. The panel remanded for the district court to consider in the first instance the remaining preliminary injunction factors in Winter v Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Chief Judge Murguia, joined by Judges Rawlinson and Sung, dissented. She would hold that AB 32 is valid under the intergovernmental immunity doctrine because it neither regulates nor discriminates against the federal government. She wrote that the majority erred by extending intergovernmental immunity to nondiscriminatory, indirect regulation of the government. In addition, AB 32 is not preempted. Because AB 32 is entitled to a presumption against preemption, and Congress has not expressed a clear and manifest intent to overcome that presumption, the law is not preempted. She would hold that the majority erred by failing to apply the presumption against preemption. She would affirm the district court's order denying preliminary injunctive relief.
OPINIONNGUYEN, Circuit Judge, with whom IKUTA, OWENS, R. NELSON, LEE, and FORREST, Circuit Judges, join in full, and with whom M. SMITH and WATFORD, Circuit Judges, join except as to section V.B.2:
At the direction of Congress, Immigration and Customs Enforcement (ICE) carries out extensive detention operations, a substantial portion of which takes place in California. Due to significant fluctuations in the population of noncitizens who are detained, and other challenges unique to California ICE relies almost exclusively on privately operated detention facilities in the state to maintain flexibility. But in...
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