Ugochukwu Nwauzor v. the Geo Group, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UGOCHUKWU GOODLUCK No. 21-36024

NWAUZOR; FERNANDO

AGUIRRE-URBINA, individually and

on behalf of all those similarly D.C. No. 3:17-cv-

situated, 05769-RJB

Plaintiffs-Appellees,

ORDER

v.

THE GEO GROUP, INC., a Florida

corporation,

Defendant-Appellant.

STATE OF WASHINGTON, No. 21-36025

Plaintiff-Appellee,

D.C. No. 3:17-cv-

v. 05806-RJB

THE GEO GROUP, INC.,

Defendant-Appellant.

Filed August 13, 2025

2 NWAUZOR V. THE GEO GROUP, INC.

Before: Mary H. Murguia, Chief Judge, and William A.

Fletcher and Mark J. Bennett, Circuit Judges.

Order;

Statement by Judges Murguia and W. Fletcher;

Dissent by Judge Bumatay;

Dissent by Judge Collins

SUMMARY *

Washington’s Minimum Wage Act

The panel denied a petition for panel rehearing and a

petition for rehearing en banc in a case in which the panel

affirmed the district court’s judgment in favor of a class of

detainees and Washington State in their consolidated actions

against GEO Group, Inc., which operates the Northwest

Immigration and Customs Enforcement Processing Center

in Tacoma, Washington, for violations of Washington’s

Minimum Wage Act.

Respecting the denial of rehearing en banc, Chief Judge

Murguia and Judge W. Fletcher wrote briefly to emphasize

three points concerning Judge Bumatay’s dissent from

denial of rehearing en banc. First, the majority opinion’s

holding does not discriminate against the federal

government. The employment of plaintiffs—civil

detainees—was part of a private company’s business model.

The Washington Minimum Wage Act regulates this type of

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

NWAUZOR V. THE GEO GROUP, INC. 3

private business activity uniformly regardless of whether the

entity is contracting with the federal or state government.

Second, the panel majority disagreed with the new argument

in the dissent from denial of rehearing en banc, not made by

any party or amicus, that plaintiffs were not “employees”

and Washington therefore could not apply its Minimum

Wage Act. Third, the dissent’s equation of the federal

government and its contractors is contrary to long-settled

law.

Dissenting from the denial of rehearing en banc, Judge

Bumatay, joined by Judges Callahan and VanDyke, wrote

that this case should be reheard en banc because, in addition

to the reasons cited in Judge Bennett’s dissent, reclassifying

detainees as “employees” and applying the minimum wage

law would interfere with the performance of a federal

operation. The panel majority’s decision sets a dangerous

precedent because it allows any State to impair any federal

policy—no matter how central to the federal government—

so long as the State regulates federal contractors rather than

the federal government itself.

Dissenting from the denial of rehearing en banc, Judge

Collins, joined by Judges R. Nelson and Bress, wrote that,

for substantially the reasons set forth in Judge Bennett’s

panel dissent, he agreed that the panel majority’s decision

contravened controlling Ninth Circuit and Supreme Court

precedent applying the doctrines of intergovernmental

immunity and federal preemption.

4 NWAUZOR V. THE GEO GROUP, INC.

ORDER

Chief Judge Murguia and Judge W. Fletcher voted to

deny the petition for panel rehearing. Judge Bennett voted

to grant the petition for panel rehearing. Chief Judge

Murguia voted to deny the petition for rehearing en banc,

and Judge W. Fletcher so recommended. Judge Bennett

voted to grant the petition for rehearing en banc.

The full court has been advised of the petition for

rehearing en banc. A judge requested a vote on whether to

rehear the matter en banc. The matter failed to receive a

majority of votes of the nonrecused active judges in favor of

en banc consideration. Fed. R. App. P. 40(c). Judges

Christen and Miller did not participate in the deliberations or

vote in this case.

Appellant’s Petition for Panel Rehearing or Rehearing

En Banc (Dkt. No. 145) is DENIED.

MURGUIA, Chief Judge, and W. FLETCHER, Circuit

Judge, respecting the denial of rehearing en banc:

Our colleague, Judge Bumatay, dissents from our

Court’s denial of rehearing en banc.

Our majority opinion speaks for itself, and we will not

repeat here everything we wrote in the opinion. We write

briefly to emphasize three points.

First, our colleague contends that our holding

discriminates against the federal government. We strongly

disagree. Our colleague argues that we require GEO to pay

higher wages to its employees than Washington pays its

comparable employees. He compares the wage GEO must

NWAUZOR V. THE GEO GROUP, INC. 5

pay to its detainees to the wage Washington pays to its

“detainees.” He writes, “Washington State’s own policy

caps pay to detainees at its criminal detention facilities at

‘$40 per week,’” a “more than a ‘1500% increase’” over

what GEO is required to pay. Diss. at 11 (first emphasis

added).

Our colleague’s comparison is inapt. The Washington

“detainees” to which he refers are convicted felons held in

state-operated and state-owned prisons. The employment of

these “detainees” is part of Washington’s penal regime. The

plaintiffs in the case before us are civil detainees, held while

their immigration status is determined. They are not

convicted felons.

Through its employment of civil detainees, GEO is able

to avoid hiring about 85 full-time employees. Plaintiffs’

employment was not part of a State’s penal regime. It was

part of a private company’s business model. The

Washington Minimum Wage Act regulates this type of

private business activity uniformly regardless of whether the

entity is contracting with the federal or state government.

Second, our colleague argues that plaintiffs were not

“employees” and Washington therefore cannot apply its

Minimum Wage Act. This is a new argument, not made by

any party or amicus. Here, too, we strongly disagree. In

support of his argument, our colleague argues that “federal

law prohibits the employment of illegal aliens.” Diss. at 26.

Even if our colleague’s statement of law were applicable to

this case, it ignores the fact that some of the detainees

confined by GEO are not “illegal aliens.” Some detainees

held by GEO are entitled to remain in the United States.

They will be released back into the United States once their

immigration status is determined. Further, our colleague

6 NWAUZOR V. THE GEO GROUP, INC.

ignores the basic facts and law of this case. The Washington

Supreme Court’s reasoned response to our certified question

concluded that “detained workers at a private detention

facility are ‘employees’ within the meaning of the

[Minimum Wage Act].” Nwauzor v. The Geo Grp., Inc., 540

P.3d 93, 104 (2023). Our majority opinion faithfully applied

that holding. However much our colleague would like to see

the matter differently, plaintiffs were, in fact, employees.

They performed work for GEO, and they were paid for

performing that work. Finally, our colleague again

compares plaintiffs in this case to convicted criminals,

writing that “the State cannot dictate terms about their

employment status any more than it could if the facility

housed federal prisoners serving custodial sentences.” Diss.

at 13. Our colleague continues to ignore the fact that federal

prisoners are convicted criminals, whose employment in

prison is part of their criminal punishment, while plaintiffs

are civil detainees.

Third, our colleague ignores the fundamental distinction

between the federal government and its contractors. He

would require Washington to treat the federal government’s

contractors in the same manner it is required to treat the

federal government itself. He writes, “When a federal

contractor acts on behalf of the federal government to

administer a federal function—like the detention of aliens—

the contractor is not merely a private business; it steps into

the shoes of the federal government for Supremacy Clause

purposes.” Diss. at 14. Again, we strongly disagree.

Our colleague’s equation of the federal government and

its contractors is contrary to long-settled black letter law.

Adoption of his position would allow any government

contractor to refuse to pay state-mandated minimum wage to

its employees. For example, any defense contractor could

NWAUZOR V. THE GEO GROUP, INC. 7

refuse to pay minimum wage. No one in this case, not even

GEO, has suggested that this is the law.

BUMATAY, Circuit Judge, joined by CALLAHAN and

VANDYKE, Circuit Judges, dissenting from the denial of

rehearing en banc:

State frustration with federal policies is nothing new.

From the very beginning, States have sought to thwart

federal policies. In 1792, Thomas Jefferson was incensed

about the establishment of a national bank. See Thomas

Jefferson, From Thomas Jefferson to James Madison,

Founders Online, Nat’l Archives (Oct. 1, 1792). 1 In his

view, the creation of a bank was left to the States alone, and

the federal government had no authority to erect one. Id.

His opposition to a national bank was so vehement that he

told James Madison that it was “an act of treason against the

state.” Id. Indeed, instead of Virginia creating a competing

bank as suggested by Madison, Jefferson proposed that the

State should “adjudge[]” any employee of the national bank

“guilty of high treason and suffer death accordingly, by the

judgment of the state courts.” Id. He had hope that this

“example”—executing bank employees—would be

followed by other States. Id. To Jefferson, it was this

extreme response or else “nothing should be done.” Id.

Of course, Jefferson’s hyperbole never came to fruition.

But another State, Maryland, did try to interfere with the

Bank of the United States years later by taxing its operations.

See McCulloch v Maryland, 17 U.S. 316, 425 (1819). Even

while recognizing that taxation was within the traditional

1

https://perma.cc/28U9-H7UY.

8 NWAUZOR V. THE GEO GROUP, INC.

sphere of state power, the Supreme Court stopped

Maryland’s tax as violating the Constitution’s Supremacy

Clause. Id. at 436. Simply, “the States have no power, by

taxation or otherwise, to retard, impede, burden, or in any

manner control, the operations of the constitutional laws

enacted by Congress to carry into execution the powers

vested in the general government.” Id.

True, under our federalism, States may generally

regulate businesses within their borders. And it’s largely an

advantage of our constitutional system that each State may

experiment with social and economic policies through its

police powers. See, e.g., New State Ice Co. v. Liebmann, 285

U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of

the happy incidents of the federal system that a single

courageous state may, if its citizens choose, serve as a

laboratory; and try novel social and economic experiments

without risk to the rest of the country.”).

But by ratifying the Constitution, we placed some limits

on state power. See U.S. Const. art. VI, cl. 2. Under the

Supremacy Clause, if state law interferes with the operation

of federal law, then federal law trumps—no matter how

strong the state opposition. And States can’t get around that

supremacy by indirect means. Given the explosion of

federal work done by contractors, the Supremacy Clause

would mean little if States could attack federal policies

through regulation of federal contractors. Thus, anytime a

state law “would defeat the legitimate operations” of the

federal government—even if only through the federal

government’s contractors—it’s unconstitutional.

McCulloch, 17 U.S. at 427.

NWAUZOR V. THE GEO GROUP, INC. 9

***

Since the 1980s, the federal government has used

privately owned facilities to assist with immigration control.

By 1991, private contractors operated half of the federal

government’s detention facilities. In 2020, the federal

government owned only five detention facilities, and even

those were contractor run. This reflects the federal

government’s belief that contracted facilities better serve its

needs—expanding and contracting more nimbly than

permanent federal institutions as the detainee population

fluctuates. This results in cost savings for the public. Since

2005, Immigration and Customs Enforcement (“ICE”) has

operated one privately owned immigration-detention facility

in the State of Washington—the Northwest ICE Processing

Center in Tacoma (“Northwest ICE Center”). The

Northwest ICE Center is owned and operated by the GEO

Group, Inc., a private corporation.

It’s no understatement to say that the State of

Washington dislikes the federal government’s use of private

facilities for immigration detention. In 2021, the

Washington Legislature passed a law prohibiting the

operation of “a private detention facility within the state.”

See Wash. Rev. Code § 70.395.030. Armed with this law,

Washington tried to shut down the Northwest Detention

Center. See Geo Grp., Inc. v. Inslee, 702 F. Supp. 3d 1043,

1046 (W.D. Wash. 2023) (“Inslee I”). But even the State

conceded that its efforts to close the facility violated the

Constitution’s Supremacy Clause. See id. As we’ve said, a

State’s attempt to ban private immigration-detention centers

violates the “foundational limit on state power.” Geo Grp.,

Inc. v. Newsom, 50 F.4th 745, 758 (9th Cir. 2022) (en banc).

Undeterred, in 2023, the Washington Legislature tried again

by enacting onerous requirements on private-detention

10 NWAUZOR V. THE GEO GROUP, INC.

facilities within the State. GEO Grp., Inc. v. Inslee, 720 F.

Supp. 3d 1029, 1037 (W.D. Wash. 2024) (“Inslee II”).

While written broadly, the law’s “history and text ma[d]e

clear that it applie[d] only to” the Northwest ICE Center. Id.

Once again, much of the law was struck down as

discriminating against the federal government. Id. at 1039.

What Washington couldn’t do directly, it now tries

indirectly by attacking ICE’s work program at the facility.

ICE requires its detention facilities to establish a Voluntary

Work Program for detainees. See U.S. Immigr. & Customs

Enf’t, Performance-Based National Detention Standards

2011 § 5.8, at 406 (rev. 2016) (“ICE Detention Standards”). 2

The Voluntary Work Program is important to ICE’s detainee

management. ICE believes that the Program enhances

operations and services “through detainee productivity.” Id.

at 405. It helps mitigate the negative impact of confinement

by decreasing idleness, improving morale, and reducing

disciplinary incidents. Id. In other words, ICE implemented

the Program to improve conditions and safety at detention

facilities for both the detainees and staff. Nothing in ICE’s

guidelines classifies those who participate in the Program as

“employees.” For decades, Congress has blessed these

voluntary work programs—appropriating allowances to pay

“aliens, while held in custody under the immigration laws,

for work performed.” 8 U.S.C. § 1555(d). Given that these

detainees are not “employees,” Congress last set the rate for

these allowances at $1 per day in 1978. See Departments of

State, Justice, and Commerce, the Judiciary, and Related

Agencies Appropriation Act of 1979, Pub. L. No. 95-431, 92

Stat. 1021, 1027 (1978). It has not raised the allowance since

then.

2

https://perma.cc/NY8C-U394.

NWAUZOR V. THE GEO GROUP, INC. 11

GEO’s contract obligates it to run the Voluntary Work

Program at the Northwest ICE Center. Under ICE’s

guidelines, GEO pays detainees the minimum allowance of

$1 per day, as established by Congress. Washington now

seeks to interfere with the operation of the Voluntary Work

Program at the Northwest ICE Center. In 2017, Washington

and a class of detainees sued GEO, arguing that detainees

who participate in the Program are “employees” and thus the

State’s minimum wage law must apply to them. In 2025,

that would mean detainees are owed $16.66 per hour. See

Wash. Rev. Code § 49.46.020. 3 Put differently, the

detention facility would need to pay more than 130 times the

minimum wage set by Congress in an eight-hour day

($133.28 v. $1). By contrast, Washington State’s own policy

caps pay to detainees at its criminal detention facilities at

“$40 per week.” See Nwauzor v. GEO Grp., Inc., 127 F.4th

750, 773 (9th Cir. 2025) (Bennett, J., dissenting). So if a

detainee works for 40 hours in a week, Washington State

would pay the detainee only $40 but the Northwest

Detention Center would have to pay the same detainee

$666—more than a “1500% increase.” See id. Even so, a

jury found that GEO violated the minimum wage law and

awarded more than $17 million in back pay to the detainee

class. After a bench trial, the district court penalized GEO

almost $6 million in unjust enrichment and enjoined GEO

from operating the Voluntary Work Program without paying

detainees Washington’s minimum wage. That represents a

cumulative $23 million in added cost and a mandatory

restructuring of ICE’s program. In response, ICE permitted

3

Wash. State Dep’t of Labor & Indus., Minimum Wage,

https://perma.cc/SAU3-273M.

12 NWAUZOR V. THE GEO GROUP, INC.

GEO to shut down the Voluntary Work Program at the

Northwest ICE Center.

On appeal, a divided panel of this court affirmed the

rulings. Id. at 750 (majority opinion). First, the panel

majority rejected GEO’s claim of intergovernmental

immunity on two grounds. Id. at 763. It ruled that the

minimum wage law “neither controls federal operations nor

dictates the terms of the contract between ICE and GEO.”

Id. at 761. And it concluded that the minimum wage law

isn’t discriminatory because it doesn’t treat “private

facilities operated under contract with the federal

government differently from private facilities operated

under contract with the state government.” Id. at 761–63.

Second, the panel majority determined that the minimum

wage law wasn’t preempted by federal law because the state

law “falls squarely within the states’ historic police powers

to establish and require payment of a minimum wage.” Id.

at 768. Finally, the panel majority refused to grant GEO

derivative sovereign immunity because the company’s

contract with ICE didn’t prohibit the company from

complying with the minimum wage law. Id. at 770–71.

Judge Bennett forcefully dissented on two grounds—

each reason enough to reconsider this case en banc. First,

the dissent correctly concluded that Washington’s law

discriminated against the federal government. As the dissent

noted, Washington’s law “punishes the federal government

for its policy choice to use private contractors and treats the

federal government differently from state facilities. That is

the very definition of a state affording itself better treatment

than it affords the United States.” Id. at 774 (Bennett, J.,

dissenting). Second, the dissent made strong arguments that

federal law preempts the minimum wage law’s application

to the Northwest ICE Center. Id. at 778–83. The dissent

NWAUZOR V. THE GEO GROUP, INC. 13

emphasized that “[t]he majority has charted a roadmap for

states to circumvent the Supremacy Clause and Congress’s

authority and force the federal government to meet a higher

standard than the state imposes on itself.” Id. at 778.

On top of the reasons laid out in the dissent, here’s

another—reclassifying the detainees as “employees” and

applying the minimum wage law would interfere with the

performance of a federal operation. Simply, ICE, with the

blessing of Congress, has determined that operating a

Voluntary Work Program at its detention facilities assists in

its immigration-control duties. As part of that operation,

Congress has determined that participants in the program are

not federal employees and should be paid a minimum

allowance of $1 per day. The State of Washington can’t then

countermand that congressional directive by demanding the

restructuring of the Voluntary Work Program and imposing

a higher wage floor. As the Court has said, “because the

Supremacy Clause immunizes the activities of the Federal

Government from state interference, . . . direct state

regulation of federal facilities is allowed only to the extent

that Congress has clearly authorized such regulation.”

Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 180 n.1

(1988). Washington does not have the power to define the

employment status of federal detainees. While the detainees

at the Northwest ICE Center may be housed in a private

facility, they are there because they’re federal detainees in

federal custody. So the State cannot dictate terms about their

employment status any more than it could if the facility

housed federal prisoners serving custodial sentences.

And while Washington’s attempt to impair the

Northwest ICE Center is less draconian than Jefferson’s

suggestion, it’s still interference contravening the

Supremacy Clause. In denying intergovernmental immunity

14 NWAUZOR V. THE GEO GROUP, INC.

on direct-regulation grounds, the panel majority all but

admitted that the minimum wage law would violate the

Supremacy Clause if the federal government had run the ICE

Detention Center “directly.” See Nwauzor, 127 F.4th at 761.

The panel majority didn’t contest the government’s

argument that there would be “no dispute that if the federal

government operated the detention facility and implemented

the Voluntary Work Program directly, principles of

intergovernmental immunity would bar application of state

minimum wage laws to detainees.” Id. Instead, the panel

majority simply brushed away the argument because the

government doesn’t “perform[] those functions” but “GEO,

a private for-profit company,” does. Id.

So the fundamental question here is whether the

Supremacy Clause protects a federal program, performed by

federal contractors, from state regulation. The answer must

be “yes.” When a federal contractor acts on behalf of the

federal government to administer a federal function—like

the detention of aliens—the contractor is not merely a

private business; it steps into the shoes of the federal

government for Supremacy Clause purposes. The

constitutional directive of federal supremacy shouldn’t turn

on the ownership of the plot of land used to carry out the

federal policy or who provides the immediate paycheck of

those implementing the federal policy. In the end, if a

federal policy is “made in Pursuance” to constitutional law,

U.S. Const. art. VI, cl. 2, then States can’t “retard, impede,

burden, or in any manner control” that federal policy,

McCulloch, 17 U.S. at 436—even if the federal government

chooses to use contractors to execute it.

Allowing the panel majority’s decision to stand sets a

dangerous precedent. Under this court’s decision, any State

can impair any federal policy—no matter how central to the

NWAUZOR V. THE GEO GROUP, INC. 15

federal government—so long as the State regulates federal

contractors rather than the federal government itself. Doing

so would be unworkable—granting States the power to

undermine federal operations based on policy disagreements

whenever federal contractors are involved. Otherwise, to

avoid all this, the federal government would be forced to

stop using contractors to carry out its work. That

contravenes the constitutional design. We should have taken

this case en banc to correct this error. 4

I respectfully dissent from our decision not to rehear this

case en banc.

I.

The use of private contractors to implement government

policies predates the Founding of our country. Indeed, our

government’s contracting practices trace their origins to the

French and Indian War, when American colonists helped

supply the British Army’s war effort in the Americas. That

conflict served as the colonists’ first introduction to the

challenges of supplying an army during war. James F.

Nagle, A History of Government Contracting Vol. I 10 (3d

ed. 2012). Under the British contracting system, the generals

in charge of an army awarded supply contracts to merchants.

These contracts “were more like carte blanche delegations of

authority” and suppliers were expected to use their own

contacts (and credit) to keep the army supplied. Id. at 11,

13. In return, contractors received a 5% commission on the

supplies they procured for the army. Id. at 11; Theodore

4

Because the Supremacy Clause is enough to invalidate the application

of Washington’s minimum wage law to the Northwest ICE Center,

there’s no need to discuss the panel majority’s derivative sovereign

immunity ruling. But that doesn’t mean it’s correct.

16 NWAUZOR V. THE GEO GROUP, INC.

Thayer, The Army Contractors for the Niagara Campaign,

1755-1756, 14 Wm. & Mary Q. 31, 33 (1957).

Keeping with the British tradition, the use of contractors

continued through the American Revolution. Private

merchants supplied the Continental Army largely on a

commission basis. The Continental Congress appointed the

first commissary general in 1775 and George Washington

appointed a quartermaster general soon after—both

merchants paid by salary or commission. Nagle, History of

Government Contracting Vol. I, at 19. Even then, the

Continental Congress recognized that government functions,

such as supplying the military, benefited from partnerships

with the private sector. After all, “[o]nly a merchant had the

knowledge, the trade connections, and the credit needed to

handle procurement.” Id.; see also E. Wayne Carp, To

Starve the Army at Pleasure: Continental Army

Administration and American Political Culture 1775–1783

at 20–21 (1984) (noting the Continental Congress’s lack of

expertise in organizing and supplying a war effort). After

Independence, our nation continued to depend on private

parties for government functions—offering the same 5%

commission used during the war. Nagle, History of

Government Contracting Vol. I, at 42. The national

government also relied on private parties to transport and

deliver mail—another fundamental government function at

the time. Id. at 42–43.

Things became more formalized after the Constitution’s

ratification. Congress established the Office of Purveyor of

Public Supplies in 1795. See Act to establish the Office of

Purveyor of Public Supplies, ch. 27, 1 Stat. 419 (1795).

Congress placed the Purveyor of Public Supplies under the

Secretary of the Treasury and empowered him “to conduct

the procuring and providing of all arms, military and naval

NWAUZOR V. THE GEO GROUP, INC. 17

stores, provisions, clothing, Indian goods, and, generally, all

articles of supply requisite for the services of the United

States.” Id.

How did government contracting look in the post-

ratification period? Lighthouses are a good early example.

Lighthouses served an important public safety function and

facilitated the flow of commerce—a particular focus of our

early government. According to the National Park Service,

“[i]n one of its first acts after its formation in 1789, the US

Government assumed control of all aids to navigation in the

country.” National Park Service, History of Lighthouses in

the United States (2009). 5 And yet, private parties largely

operated lighthouses—federal contractors built, supplied,

and inspected them. Nagle, History of Government

Contracting Vol. I, at 46. These contractors “virtually

administered the lighthouse organization and exercised wide

discretion in performing their duties” for more than 50 years

after the Founding. Id.

Following the War of 1812, the federal government

made greater efforts to standardize its contracting and

procurement processes. For instance, Congress charged the

Ordnance Department with procuring arms and munitions

for the military, as well as “supervising the government

armories and storage depots.” Id. at 81. This brought about

significant change—most notably the introduction of a

“uniformity system,” which imposed strict quality controls

on contractors. See id. at 85, 87.

The Civil War marked a massive expansion in

government contracting. The federal government expanded

the military rapidly to meet the needs of the war.

5

https://perma.cc/WSN3-XUSX.

18 NWAUZOR V. THE GEO GROUP, INC.

Particularly, the federal government used a combination of

its own production and contracts with private parties who

manufactured or dealt in arms. Id. at 132. The government

contracted with private parties for all sorts of supplies—

everything from weapons and clothing to railroad

transportation and ships. See id. at 130–33, 136, 139, 146–

50. The massive spike in production and contracting during

the Civil War led to the significant increase of private

corporations and further entrenched the government’s

reliance on the private sector to fulfill its most essential

functions. See id. at 157–58.

In the modern era, the federal government’s reliance on

contractors has increased still. Following the World Wars

and the New Deal, the federal government’s activities

expanded into a range of new areas. See James F. Nagle, A

History of Government Contracting Vol. II 149–52 (3d ed.

2012). While the federal government once primarily

contracted for goods—military supplies and the like—it now

increasingly contracts for services. Id. at 170. Service

providers help the government perform various tasks,

including those historically considered quintessentially

government activities. For example, private companies now

directly “train troops, collect and analyze intelligence, and

carry out special operations.” Lindsay Windsor, James

Bond, Inc.: Private Contractors and Covert Action, 101 Geo.

L.J. 1427, 1428 (2013); see also P. W. Singer, Corporate

Warriors: The Rise of the Privatized Military Industry 121,

124, 136, 142–44 (2003) (describing how private contractors

provided instructors for command colleges, developed

training plans and analyses, and supported logistics for

military operations).

So our government has relied on private contractors to

assist with, and indeed sometimes perform, its constitutional

NWAUZOR V. THE GEO GROUP, INC. 19

duties from the very beginning. The partnership with the

private sector offered the federal government the expertise

and efficiency needed to build our country from the ground

up. And today that partnership is as vital as ever. Disturbing

the federal government’s use of private contractors by state

regulation would impair the federal government from

carrying out its duties.

II.

Today, the constitutional directive of federal supremacy

has evolved into two related doctrines—intergovernmental

immunity and preemption. First, under intergovernmental

immunity, the Supremacy Clause “prohibit[s] state laws that

either regulate the United States directly or discriminate

against the Federal Government or those with whom it deals

(e.g., contractors).” United States v. Washington, 596 U.S.

832, 838–39 (2022) (simplified). Second, preemption

occurs when “state and federal law directly conflict,” and

requires that “state law must give way.” PLIVA, Inc. v.

Mensing, 564 U.S. 604, 617 (2011) (simplified).

Judge Bennett’s panel dissent conclusively establishes

how Washington’s minimum wage law singles out the

federal government’s contractors for less favorable

treatment and so violates the Supremacy Clause. See

Nwauzor, 127 F.4th at 771–77 (Bennett, J., dissenting). The

panel dissent also makes strong arguments for preemption of

the state law as applied to the Northwest ICE Center. Id. at

777–83. Those arguments show why we should have taken

this case en banc.

But applying Washington’s minimum wage to the

Northwest ICE Center also violates another facet of the

Supremacy Clause—the direct regulation of the federal

government. Simply, the state law “retard[s], impede[s],

20 NWAUZOR V. THE GEO GROUP, INC.

burden[s]” and “control[s],” McCulloch, 17 U.S. at 436, the

operation of the Voluntary Work Program—a

congressionally approved program to maintain order and

safety at a federal detention center. Thus, even if run by

federal contractors, the state law violates the Supremacy

Clause when applied to the Northwest ICE Center.

A.

Alexander Hamilton observed that the supremacy of

federal law is essential to our constitutional system because,

without it, the Constitution “would otherwise be a mere

treaty, dependent on the good faith of the parties, and not a

government, which is only another word for political power

and supremacy.” The Federalist No. 33 (Alexander

Hamilton). He was right. The Supremacy Clause reads:

This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof; and all Treaties made, or which shall

be made, under the Authority of the United

States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound

thereby, any Thing in the Constitution or

Laws of any State to the Contrary

notwithstanding.

U.S. Const. art. VI, cl.2. By its own terms, the Supremacy

Clause “creates a rule of decision” that commands courts to

“not give effect to state laws that conflict with federal laws.”

Armstong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 324

(2015). Instead, the Clause establishes that, in the event of

a conflict with state law, state and federal courts “shall”

recognize the federal law as “supreme.” U.S. Const. art. VI,

cl.2. “The Clause, in the standard account of its origins, was

NWAUZOR V. THE GEO GROUP, INC. 21

profoundly nationalistic, rejecting the weakly constructed

union of the Articles of Confederation and creating a true

national government that would prevail in contests with the

states—and indeed enlisting state judges as enforcers of

national power.” Michael D. Ramsey, The Supremacy

Clause, Original Meaning, and Modern Law, 74 Ohio St.

L.J. 559, 575 (2013). 6

McCulloch v. Maryland shows how interference with a

federal objective violates the Supremacy Clause—even if a

private corporation is involved. By 1816, Congress

incorporated the Second Bank of the United States. The

Bank was no federal government agency. Instead, it was

privately owned—taking deposits and loans from both the

federal government and private parties. The Bank proved

unpopular with some—particularly the Jeffersonian

Republicans. In response, the State of Maryland enacted a

seemingly general law—“an act to impose a tax on all banks

. . . in the state of Maryland, not chartered by the [state]

legislature.” McCulloch, 17 U.S. at 320 (quoting from

syllabus). The tax required these banks to pay a 1–2% tax

6

The constitutional design didn’t leave States without a say in what

became the “supreme Law.” All three sources of “supreme Law”—the

“Constitution,” “the Laws of the United States which shall be made in

pursuance thereof,” and “Treaties made . . . under the Authority of the

United States”—required some buy-in from the States as an original

matter. See Ramsey, The Supremacy Clause, supra, at 565, 598.

Statutes and treaties require approval from the Senate, U.S. Const. art. I,

§ 7—and Senators were originally chosen by state legislatures and were

thus direct representatives of the States’ interests in Congress. See id.

art. I, § 3, cl. 1. The Constitution’s ratification itself needed the approval

of nine States. Id. art. VII. And amendments need to be approved by

three-fourths of States (either by legislatures or ratifying conventions) to

become part of the Constitution. See id. art. V. So States weren’t

powerless in determining the “supreme” law as an original matter.

22 NWAUZOR V. THE GEO GROUP, INC.

on bank notes or pay $15,000 to the State in advance. Id. at

321. While broadly written, the tax only targeted the Bank

of the United States. Id. at 392 (“But this tax is levelled

exclusively at the branch of the United States Bank

established in Maryland. There is, in point of fact, a branch

of no other bank within that state, and there can legally be

no other.”) (statement of William Pinkney, attorney for the

Bank, at oral argument).

Under the Supremacy Clause, the Court held that no

State has the power to defeat a constitutional congressional

directive. The Court started with three axioms: (1) the

“power to create implies a power to preserve,” (2) a “power

to destroy, if wielded by a different hand, is hostile to, and

incompatible with these powers to create and to preserve,”

and (3) “where [a] repugnancy exists, that authority which is

supreme must control.” Id. at 426. So, “[i]t is the very

essence of supremacy, [for a supreme government] to

remove all obstacles to its action within its own sphere, and

so to modify every power vested in subordinate

governments, as to exempt its own operations from their own

influence.” Id. at 427. Since Congress had the authority to

establish the Bank under the Necessary and Proper Clause,

Maryland’s tax could not stand. After all, “the power to tax

involves the power to destroy” and that “power to destroy

may defeat and render useless the power to create.” Id. at

431. In sum, “states have no power, by taxation or

otherwise, to retard, impede, burden, or in any manner

control, the operations of the constitutional laws enacted by

Congress to carry into execution the powers vested in the

general government.” Id. at 436.

So it didn’t matter that Maryland imposed the tax on the

Bank and not directly on a federal agency. Instead, it was

enough the bank was an “instrument” “employed by the

NWAUZOR V. THE GEO GROUP, INC. 23

government in the execution of its powers.” Id. at 432.

Thus, as it was argued in McCulloch, the bank could

“equally claim” the federal government’s “protection” as

“proceed[ing] from the supreme power.” Id. at 396

(Pinkney). While States could still tax real property of the

Bank like other real property within their borders, they

couldn’t place a “tax on the operation of an instrument

employed by the government of the Union to carry its

powers into execution.” Id. at 436–37.

B.

It flows directly from McCulloch that the State of

Washington can’t demand treatment of detainees of a federal

detention facility as “employees” and increase the minimum

allowance paid to them to defeat the operation of a federal

work program. First, the federal government’s immigration-

detention policies are entitled to the protection of the

Supremacy Clause. Second, both Congress and the

executive branch have determined that a voluntary work

program will help carry out the government’s duty to detain

certain aliens in removal proceedings. Third, Washington’s

minimum wage law burdens voluntary work programs

because it requires the federal government to treat

immigration detainees as “employees” and given them

concomitant pay. Fourth, it makes no difference that federal

contractors administer the Voluntary Work Program on

behalf of the federal government. The result of all this?

Applying Washington’s minimum wage law to the

Northwest ICE Center violates the Supremacy Clause.

1. Federal policy over immigration detention is entitled

to federal supremacy. “The Government of the United States

has broad, undoubted power over the subject of immigration

and the status of aliens.” Arizona v. United States, 567 U.S.

24 NWAUZOR V. THE GEO GROUP, INC.

387, 394 (2012). And Congress “has plenary power over

immigration matters.” Sale v. Haitian Ctrs. Council, 509

U.S. 155, 201 (1993) (Blackmun, J., dissenting); see U.S.

Const. art. I, § 8, cl. 4 (granting Congress the power to

“establish an uniform Rule of Naturalization”). Under that

authority, Congress mandates that federal officials detain

certain aliens. See, e.g., 8 U.S.C. §§ 1225(b)(1)(B)(ii),

(b)(2)(A), 1226(a), (c)(1), 1231(a)(6). Congress thus

directed that the federal government “shall arrange for

appropriate places of detention for aliens detained pending

removal or a decision on removal.” 8 U.S.C. § 1231(g)(1).

To complete this duty, Congress has authorized the federal

government to “expend . . . amounts necessary to acquire

land and to acquire, build, remodel, repair, and operate

facilities . . . necessary for detention.” See 8 U.S.C.

§ 1231(g)(1). The federal government has “broad

discretion” to decide where aliens should be detained.

Newsom, 50 F.4th at 751 (simplified).

Given the federal government’s constitutional duty to

oversee immigration detention, any state interference with

federal immigration-detention policy offends the Supremacy

Clause. Simply, no state law can “defeat the legitimate

operations of [the federal] government.” McCulloch, 17

U.S. at 427.

2. ICE’s Voluntary Work Program stems directly from

congressional and executive action. The benefits of the

Voluntary Work Program are obvious. As we recognized

elsewhere, these detention center work programs “occupy

idle prisoners” and “reduce disciplinary problems.” Morgan

v. MacDonald, 41 F.3d 1291, 1293 (9th Cir. 1994)

(simplified). And ICE has found that the Voluntary Work

Program “enhance[s]” the “[e]ssential operations and

services” of a detention facility “through detainee

NWAUZOR V. THE GEO GROUP, INC. 25

productivity.” See ICE Detention Standards § 5.8, at 405.

In ICE’s view, the Program reduces “the negative impact of

confinement . . . through decreased idleness, improved

morale and fewer disciplinary incidents.” Id. So Congress

authorized the Program to promote safety and maintain order

at federal immigration-detention facilities.

Congress decided not to treat detainees who volunteer

for the Program as “employees” entitled to federal minimum

wage laws and other benefits. See 8 U.S.C. § 1324a(1)(A)

(prohibiting employment of illegal aliens); see also Ndambi

v. CoreCivic, Inc., 990 F.3d 369, 371–75 (4th Cir. 2021)

(alien detainees participating in ICE’s work program are not

“employees” under the Fair Labor Standards Act). Instead,

Congress authorized funds for the federal government to

offer “payment of allowances (at such rate as may be

specified from time to time in the appropriation Act

involved) to aliens, while held in custody under the

immigration laws, for work performed.” 8 U.S.C. § 1555(d).

Notice Congress used the term “allowances,” not “wages.”

It then set the rate—“not in excess of $1 per day.” See Pub.

L. No. 95-431, 92 Stat. at 1027. The $1-a-day rate applies

until Congress changes it. And despite efforts over the years,

Congress has stuck with that allowance. See H.R. 4431,

117th Cong. § 221 (2021) (proposing changes to the

minimum allowance which did not become law).

Consistent with that congressional authority, ICE

promulgated detention standards requiring detention facility

contractors to offer detainees the opportunity to participate

in the Voluntary Work Program. See ICE Detention

Standards § 5.8, at 406 (“Detainees shall be provided the

opportunity to participate in a voluntary work program.”).

The detention standard implements detainee allowances—it

must be “at least $1.00 (USD) per day.” Id. at 407.

26 NWAUZOR V. THE GEO GROUP, INC.

Thus, ICE’s Voluntary Work Program, including its

minimum-allowance standard, was enacted “in pursuance”

of a constitutional authority and is entitled to protection

under the Supremacy Clause. See U.S. Const. art. VI, cl. 2.

3. Applying Washington’s minimum wage law to the

Voluntary Work Program interferes with federal

immigration-detention policy. The Washington law

“frustrate[s] the expressed federal policy” of not treating

detainees as “employees” and providing only a minimal

allowance. See Leslie Miller, Inc. v. Arkansas, 352 U.S. 187,

190 (1956). Congress said that detainees are not employees,

that they should be given an allowance of only $1 a day, and

that no allowance increase was necessary. The State’s

minimum wage law effectively overrides Congress’s

decision on the detainee’s status and the appropriate floor to

pay detainees at immigration-detention facilities. In effect,

Washington stepped in and said, “no, detainees are

employees and they should be paid more than 130 times

more.” Whatever reasons Congress had for its classification

decision and for setting the allowance floor so low, it’s not

up to us or any State to second guess it.

Congress has the exclusive authority to define the status

of aliens present in the United States. See U.S. Const. art. I,

§ 8, cl. 4. And federal law prohibits the employment of

illegal aliens. See 8 U.S.C. § 1324a(1)(A). ICE’s contract

similarly prohibits GEO from both employing illegal aliens

and from using detainees participating in the Voluntary

Work Program “to perform the responsibilities or duties of

an employee of the Contractor.” So GEO cannot treat the

detainees at the Northwest ICE Center as “employees” and

comply with the requirements of federal law or the mandates

of its contract with ICE.

NWAUZOR V. THE GEO GROUP, INC. 27

And restructuring of the Voluntary Work Program

enables the State to control federal operations. As Chief

Justice Marshall noted long ago, “the power to tax involves

the power to destroy.” McCulloch, 17 U.S. at 431. While a

minimum wage is not exactly a tax, the same logic applies

here. McCulloch was concerned that increased costs to the

Bank of the United States through taxation could make bank

services so costly that they would interrupt the Bank’s

operations. In the same way, Washington could set a

minimum wage so high that the Voluntary Work Program

becomes too expensive.

GEO and the federal government say that Washington

has already done so. Under Washington’s minimum wage

law, detainees participating in the Voluntary Work Program

must be paid $16.66 per hour—more than 130 times higher

for an eight-hour period than the $1-per-day rate set by

Congress. That’s on top of the $23 million that GEO owes

for back pay and unjust enrichment. All told, these costs

make the Voluntary Work Program unworkable, according

to GEO and the federal government. Indeed, ICE permitted

the Voluntary Work Program at the Northwest ICE Center

to be shut down because of the district court’s injunction.

And contrary to the panel majority’s view, it doesn’t

matter that GEO has at times given detainees more than the

minimum allowance or that Congress did not set a maximum

allowance rate for detainees. See Nwauzor, 127 F.4th at 761.

When it comes to state interference with federal operations,

“[t]he conflict with federal policy need not be as sharp as

that which must exist for ordinary pre-emption.” Boyle v.

United Techs. Corp., 487 U.S. 500, 507 (1988). The bottom

line is that Congress and the executive branch may decide

how to execute their constitutional authority over

immigration detention. And state law can’t “retard, impede,

28 NWAUZOR V. THE GEO GROUP, INC.

burden, or in any manner control, the operations of” the

federal government’s legitimate immigration-detention

program. McCulloch, 17 U.S. at 436. And there’s no

question that a 130-fold increase in the minimum allowance

burdens immigration-detention policy. Cf. Ry. Mail Ass’n v.

Corsi, 326 U.S. 88, 95–96 (1945) (observing that a state law

would interfere with a federal function if it “burdens” the

government’s “selection of its employees,” “its relations

with them,” or “define[s] the terms of . . . federal

employment or . . . any aspect of it”).

The panel majority brushes away these concerns by

essentially arguing that GEO makes a lot of money.

According to the panel majority, the $17-million back pay

figure represents only $2.5 million a year over seven years.

Nwauzor, 127 F.4th at 763. Meanwhile, the panel majority

observed that GEO makes between $18.6 million to $23.5

million per year in gross profits running the Northwest ICE

Center. Id. So because the panel majority thought that GEO

makes enough money on the facility to pay Washington’s

minimum wage law, the law is constitutional. Even if the

law were really that burdensome, the panel majority thought

that GEO could just renegotiate a higher rate to operate the

Voluntary Work Program. Id. Or, the panel majority would

presumably tell the federal government to just stop using

federal contractors.

But this is not how constitutional law works. We don’t

see if the federal government can afford the state regulation

to decide whether it violates the Supremacy Clause.

Compare this with McCulloch, in which the Court didn’t

engage in a cost-benefit analysis into whether the Bank of

the United States could pay Maryland’s 1% to 2% tax on

bank notes or the $15,000 prepayment requirement. See 17

U.S. at 321. Instead, it was enough that Maryland could tax

NWAUZOR V. THE GEO GROUP, INC. 29

the bank “to the excess of destruction, . . . which[] would

banish that confidence which is essential to all government.”

Id. at 431. So it was the mere contention that Maryland was

“capable of arresting all the measures of the government, and

of prostrating [the federal government] at the foot of the

states” that made the tax unconstitutional. Id. at 432.

Regardless of whether Washington’s current minimum

wage law makes it impossible to run the Voluntary Work

Program now (as GEO and the federal government believe),

it’s an affront to the Supremacy Clause that Washington is

“capable of arresting” the Program at all. See id. If a State

can unilaterally regulate terms at a federal detention facility

against the wishes of Congress, the federal law “would not

be the supreme law of the land” and the State’s actions would

be “an usurpation of power not granted by the

[C]onstitution.” See The Federalist No. 33.

4. And nothing in the historical understanding of the

Supremacy Clause excludes federal contractors

administering a federal program from the protection of

federal supremacy.

Consider again McCulloch. In that case, Maryland taxed

the Bank of the United States, which was neither a federal

agency nor run by federal employees. Instead, the Bank of

the United States was a private commercial bank that served

both the federal government and the public at large. And the

federal government didn’t directly control the Bank. The

federal government owned only one-fifth of the Bank’s stock

and the President appointed only one-fifth of its directors. 7

So in the foundational Supremacy Clause case, the Court did

7

Federal Reserve Bank of New York, The Founding of the Fed,

https://perma.cc/R3PA-FMCJ.

30 NWAUZOR V. THE GEO GROUP, INC.

not require the federal prerogative to be owned or run by the

federal government. It only mattered that the state tax

impeded the “operation of an instrument employed by the

government of the Union to carry its powers into execution.”

17 U.S. at 436–37.

To put a finer point on it, when Ohio likewise tried to tax

the Bank of the United States, the Court expressly compared

the employees of the Bank to “contractors” and yet still

considered the Bank’s operations to be protected by federal

supremacy. Osborn v. Bank of U.S., 22 U.S. 738, 866

(1824). The Court acknowledged that the bank’s directors

and officers were not “officers of government” and instead

had more “resemblance to contractors.” Id. at 867. Even

then, the Court held that “the right of the State to control [the

Bank’s] operations, if those operations be necessary to its

character, as a machine employed by the government, cannot

be maintained.” Id. at 867. The Court then compared taxing

the Bank to interference with more well-known federal

contractors: “Can a contractor for supplying a military post

with provisions, be restrained from making purchases within

any State, or from transporting the provisions to the place at

which the troops were stationed?” Id. Of course not, said

the Court. “[W]e do not admit that the act of purchasing, or

of conveying the articles purchased, can be under State

control.” Id.

And the understanding that States can’t interfere with

federal contractors in the performance of federal duties has

continued to this day. In Hancock v. Train, Kentucky sought

to enforce against federal agencies a state law requiring all

air-contaminant sources to obtain a state permit. 426 U.S.

167, 172–73 (1976). The Court said that no State may

“[place] a prohibition on the Federal Government”—and it

made no difference that one of the federal facilities was

NWAUZOR V. THE GEO GROUP, INC. 31

operated by a contractor rather than the federal government.

Id. at 174 n.23, 180 (simplified). “Hancock thus establishes

that a federally owned facility performing a federal function

is shielded from direct state regulation, even though the

federal function is carried out by a private contractor, unless

Congress clearly authorizes such regulation.” Goodyear

Atomic Corp., 486 U.S. at 181; see also United States v. New

Mexico, 455 U.S. 720, 735 n.11 (1982) (“[S]tate

[regulations] on contractors are constitutionally invalid if

they . . . substantially interfere with [the Federal

Government’s] activities.”); Boyle, 487 U.S. at 507

(observing that the “[t]he imposition of liability on

Government contractors will directly affect the terms of

Government contracts” either by contractors refusing to

perform for fear of state liability or by raising the costs of

the contractors’ goods or services).

Contrary to the panel majority, it also doesn’t matter that

the state regulation appears to be a “neutral,

nondiscriminatory” law. Nwauzor, 127 F.4th at 761. Recall

that Maryland’s tax, too, was facially neutral—but it only

applied to the Bank of the United States. See McCulloch, 17

U.S. at 317–18, 392. As in McCulloch, Washington’s

minimum wage law applies to no other detention facility in

the State but the Northwest ICE Center. In any case, while

States may enact regulations borne “in common” by others

similarly situated within their border, it still can’t regulate

“the operations” of “an instrument employed by the [federal]

government.” Id. at 436–37. So if a seemingly “neutral,

nondiscriminatory” state regulation impedes a federal

government operation, it violates the Supremacy Clause.

See Hancock, 426 U.S. at 172–73; New Mexico, 455 U.S. at

735 n.11.

32 NWAUZOR V. THE GEO GROUP, INC.

Thus, the panel majority is simply wrong to assert “[t]he

scope of a federal contractor’s protection from state law

under the Supremacy Clause is substantially narrower than

that of a federal employee or other federal instrumentality.”

Nwauzor, 127 F.4th at 760–61 (simplified); see also id. at

761 (“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.”) (simplified). When a state regulation

interferes with federal operations or when there’s a clear

conflict between state and federal objectives, it makes no

difference that the state law falls only on federal contractors.

See Pub. Utils. Comm’n of Cal. v. United States, 355 U.S.

534, 544 (1958).

The panel majority now claims that following the

Supremacy Clause here would allow government

contractors to refuse to pay state minimum wages to its

employees. But that’s wrong. A state minimum-wage law

on all employees in the State isn’t a regulation on federal

operations, even when applied to federal contractors. As

McCullouch made clear, the general principle “does not

extend” to taxes that are “in common with the other”

taxpayers in the State. 17 U.S. at 436. The heart of the

problem here is that Washington wants to force ICE to

reclassify its “detainees” housed at the Northwest ICE

Center as “employees.” Neither the federal government nor

Congress established them as employees. It’s only after the

forced restructuring of the Voluntary Work Program that

GEO must pay these extra minimum-wage costs. As the

panel majority acknowledges, Washington State doesn’t

treat their own criminal detainees as “employees” and

nothing gives the State the authority to compel the federal

government to classify its immigration detainees as such.

NWAUZOR V. THE GEO GROUP, INC. 33

Thus, States are generally free to impose minimum-wage

laws on federal government employees as long as the law is

neutrally and non-discriminatorily applied to all employees

in the State. What they can’t do is force the federal

government to accept the State’s classification of detainees

to cram down a minimum-wage law.

Here, GEO houses immigration detainees under the

federal government’s exclusive power to detain aliens in

removal proceedings. GEO is tasked by the federal

government to implement its Voluntary Work Program,

which the federal government believes assists with its

federal duties. Washington’s minimum wage law interferes

with GEO’s ability to carry out that federal directive. It

overrides Congress’s determination that detainees are not

employees and need only be paid $1 a day. Thus, the

Supremacy Clause precludes applying Washington’s

minimum wage law to detainees at the Northwest ICE

Center.

In contrast, the panel majority’s position would grant

States near unfettered authority to regulate any federal

operation run by federal contractors. If States may force the

federal government to recognize its detainees at privately run

detention facilities as employees, what’s to stop States from

making the federal government also provide them healthcare

benefits, pensions, and vacation leave as other employees

receive? Even more, because the panel majority provides no

limiting principles, the same rules would also apply to

federal criminal detainees in work programs at contractor-

run prisons. The Constitution would not countenance such

interference.

34 NWAUZOR V. THE GEO GROUP, INC.

III.

Whether for the reasons in the panel dissent or in this

dissent, the panel majority got this case wrong. And the

effect of this decision will be widespread. Our court

provides a “roadmap” for States seeking to undermine

federal policies with which they disagree. Nwauzor, 127

F.4th at 778 (Bennett, J., dissenting). Our court’s message

is clear: So long as States focus their regulation on federal

government contractors—rather than on the federal

government itself—the States may frustrate the performance

of any federal government activities they wish. We should

have taken this case en banc to correct this error.

As always, I respectfully dissent.

COLLINS, Circuit Judge, with whom R. NELSON and

BRESS, Circuit Judges, join, dissenting from the denial of

rehearing en banc:

For substantially the reasons set forth in Judge Bennett’s

panel dissent, see Nwauzor v. GEO Grp., Inc., 127 F.4th 750,

771–83 (9th Cir. 2025) (Bennett, J., dissenting), I agree that

the panel majority’s decision contravenes controlling Ninth

Circuit and Supreme Court precedent applying the doctrines

of intergovernmental immunity and federal preemption.

Accordingly, we should have reheard this case en banc, and

I dissent from our failure to do so.