Geo Grp., Inc. v. Newsom, 20-56172

• Docket Number: 20-56172, No. 20-56304
• Decision Date: 26 September 2022
• Citation: 50 F.4th 745
• Parties: The GEO GROUP, INC., Plaintiff-Appellant, and United States of America, 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, Defendants-Appellees, 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.
• Court: U.S. Court of Appeals — Ninth Circuit

50 F.4th 745

The GEO GROUP, INC., Plaintiff-Appellant,

and

United States of America, 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, Defendants-Appellees,andState 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.

No. 20-56172

No. 20-56304

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc June 21, 2022 Pasadena, California

Filed September 26, 2022

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.

Opinion by Judge Nguyen ;

Dissent by Judge Murguia

NGUYEN, 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 2019, California enacted Assembly Bill (AB) 32, which states that "a person shall not operate a private detention facility within the state." Cal. Penal Code § 9501. AB 32 would prevent ICE's contractors from continuing to run detention facilities, requiring ICE to entirely transform its approach to detention in the state or else abandon its California facilities.

The Supremacy Clause "prohibit[s] States from interfering with or controlling the operations of the Federal Government." United States v. Washington , ––– U.S. ––––, 142 S. Ct. 1976, 1984, 213 L.Ed.2d 336 (2022). Private contractors do not stand on the same footing as the federal government, so states can impose many laws on federal contractors that they could not apply to the federal government itself. For example, although a state can tax a federal contractor, it cannot tax the federal government itself. See United States v. New Mexico , 455 U.S. 720, 733–34, 102 S.Ct. 1373, 71 L.Ed.2d 580 (1982). But any state regulation that purports to override the federal government's decisions about who will carry out federal functions runs afoul of the Supremacy Clause. "[A state] may not deny to those failing to meet its own qualifications the right to perform the functions within the scope of the federal authority." Sperry v. Florida ex rel. Fla. Bar , 373 U.S. 379, 385, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963).

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. It would give California a "virtual power of review" over ICE's detention decisions, Leslie Miller, Inc. v. Arkansas , 352 U.S. 187, 190, 77 S.Ct. 257, 1 L.Ed.2d 231 (1956) (per curiam), and allow the "discretion of the federal officers [to] be exercised ... only if the [state] approves." Pub. Utils. Comm'n , 355 U.S. 534, 543, 78 S.Ct. 446, 2 L.Ed.2d 470 (1958). Whether analyzed under intergovernmental immunity or preemption, California cannot exert this level of control over the federal government's detention operations. AB 32 therefore violates the Supremacy Clause.

Accordingly, we vacate the district court's denial of preliminary injunctive relief and remand for further proceedings.

I

A

Congress has directed federal officials to detain noncitizens in various circumstances during immigration proceedings. See 8 U.S.C. §§ 1225(b)(1)(B)(ii), (b)(2)(A), 1226(a), (c)(1), 1231(a)(6). The Immigration and Nationality Act provides that the Secretary of the Department of Homeland Security (DHS) "shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal." 8 U.S.C. § 1231(g)(1) ; see also 6 U.S.C. § 557. Section 1231(g)(1) gives both "responsibility" and "broad discretion" to the Secretary "to choose the place of detention for deportable aliens." Comm. of Cent. Am. Refugees v. INS , 795 F.2d 1434, 1440 (9th Cir.), amended by 807 F.2d 769 (9th Cir. 1986).

The Secretary also has general administrative powers to contract with private parties. The Secretary has "authority to make contracts ... as may be necessary and proper to carry out the Secretary's responsibilities." 6 U.S.C. § 112(b)(2). Pursuant to federal procurement regulations, the Secretary has "authority and responsibility to contract for authorized supplies and services," and the Secretary "may ... delegate broad authority to manage the agency's contracting functions to heads of such contracting activities." 48 C.F.R. § 1.601(a). ICE, a component of DHS, carries out immigration detention. As one option, ICE officials "may enter into contracts of up to fifteen years' duration for detention or incarceration space or facilities, including related services." 48 C.F.R. § 3017.204-90.

A few practical and legal constraints inform ICE's detention decisions. Congress has expressed that the Secretary should favor the use of existing facilities for immigration detention, whether through purchase or lease. 8 U.S.C. § 1231(g)(1)–(2). And there are "significant fluctuations in the number and location" of detained individuals, requiring ICE to "maintain flexibility."

For these reasons, ICE does not build or operate its own detention facilities. Instead, ICE contracts out its detention responsibilities to (1) private contractors, who run facilities owned either by the contractor or the federal government, and (2) local, state, or other federal agencies.

In California, ICE faces a further obstacle: a California statute preceding AB 32 prohibits local governments from entering into new agreements or expanding existing agreements to house immigration detainees.¹ See Cal. Civ. Code § 1670.9(a) – (b) ; see also Cal. Gov't Code § 7310(a) – (b). Given all these constraints, 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.

B

In 2019, California enacted AB 32. 2019 Cal. Legis. Serv. Ch. 739 (West). AB 32 provides that "a person shall not operate a private detention facility within the state." Cal. Penal Code §...