Petition for Writ of Certiorari — The GEO Group, Inc., a Florida Corporation, Petitioner v. Ugochukwu Nwauzor, et al.

Supreme Court briefJan 9, 2026

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No. ______

In the

Supreme Court of the United States

________________

THE GEO GROUP, INC.,

Petitioner,

UGOCHUKWU NWAUZOR, et al.,

Respondents.

________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

DOMINIC E. DRAYE

PAUL D. CLEMENT

Counsel of Record

GREENBERG

RIN

E. MURPHY

TRAURIG LLP

PHILIP HAMMERSLEY*

2101 L Street NW

CLEMENT & MURPHY, PLLC

Washington, DC 20037

706 Duke Street

(202) 331-3100

Alexandria, VA 22314

drayed@gtlaw.com

(202) 742-8900

paul.clement@clementmurphy.com

*Supervised by principals of the

firm who are members of the

Virginia bar

Counsel for Petitioner

January 9, 2026

QUESTION PRESENTED

The GEO Group, Inc. is a service provider at the

Northwest ICE Processing Center (“NWIPC”) in

Tacoma, Washington, under contract with the U.S.

Immigration and Customs Enforcement (“ICE”).

Consistent with congressional direction, that federal

contract requires GEO to offer the immigration

detainees at the facility the opportunity to participate

in a voluntary work program. The program is

designed not to treat immigration detainees, who are

generally ineligible for lawful work in the United

States, as employees, but to give them an outlet to

avoid idleness during their detention. To that end,

while all ICE detention facilities must offer the

program, Congress has long capped the amount it will

reimburse from appropriated funds at $1 per day per

participant. Washington state had radically different

ideas, and would classify federal immigration

detainees participating in this federal voluntary work

program as ordinary employees entitled to the state

minimum wage, even as it exempts its own detainees

from that same law. The Ninth Circuit blessed this

extraordinary inversion of our constitutional order,

rejecting

intergovernmental

immunity

and

preemption arguments endorsed by three other

circuits and the three most recent administrations,

and saddling GEO with an approximately $37 million

judgment that has forced the suspension of the federal

work program at the federal facility at issue.

The question presented is:

Whether the Supremacy Clause allows a state to

reclassify federal immigration detainees participating

in a federal work program as employees and thereby

impose its state minimum-wage law just because a

private contractor provides detention services at the

federal facility where the detainees are housed.

iii

PARTIES TO THE PROCEEDING

Petitioner is The GEO Group, Inc. It was the

defendant-appellant below.

Respondents Ugochukwu Goodluck Nwauzor and

Fernando Aguirre-Urbina, individually and on behalf

of all others similarly situated, were plaintiffsappellees below. Respondent State of Washington was

also a plaintiff-appellee below.

CORPORATE DISCLOSURE STATEMENT

The GEO Group, Inc. is a publicly traded company. BlackRock Fund Advisors and The Vanguard

Group, Inc. each own 10 percent or more of GEO’s

stock. GEO has no corporate parent.

STATEMENT OF RELATED PROCEEDINGS

Pursuant to Supreme Court Rule 14.1(b)(iii),

petitioner states that the following proceedings are

directly related to this case:

State of Washington v. The GEO Group, Inc., Nos.

21-36025 & 22-35027 (9th Cir.).

Ugochukwu Goodluck Nwauzor, et al. v. The GEO

Group, Inc., Nos. 21-36024 & 22-35026 (9th Cir.).

State of Washington v. The GEO Group, Inc., No.

3:17-cv-05806-RJB (W.D. Wash.).

Ugochukwu Goodluck Nwauzor, et al. v. The GEO

Group, Inc., No. 3:17-cv-05769-RJB (W.D. Wash.).

Nwauzor v. The GEO Group, Inc., No. 101786-3

(Wash. Dec. 21, 2023) (answers to certified questions).

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING .......................... iii

CORPORATE DISCLOSURE STATEMENT ........... iv

STATEMENT OF RELATED PROCEEDINGS ........ v

TABLE OF AUTHORITIES ...................................... ix

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 4

JURISDICTION ......................................................... 4

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED...................................... 4

STATEMENT OF THE CASE ................................... 4

A. Legal Background ........................................ 4

B. Factual Background ..................................... 9

REASONS FOR GRANTING THE PETITION....... 17

The Supremacy Clause Forbids Washington’s

Effort To Impose Its Minimum-Wage Law On

Federal Detainees While Exempting The

State’s Own Detainees From Its Burdens ........ 19

A. The Circuits Are Divided Over How the

Intergovernmental-Immunity Doctrine

Applies When States Regulate Federal

Contractors ................................................. 20

B. The Ninth Circuit’s IntergovernmentalImmunity Holding Is Profoundly Wrong ... 25

C. The Ninth Circuit’s Preemption Analysis

Is Equally Wrong ........................................ 30

vii

II. The Question Presented Is Exceptionally

Important, And This Is An Excellent Vehicle

To Resolve It ...................................................... 35

CONCLUSION ......................................................... 38

APPENDIX

Appendix A

Opinion, United States Court of Appeals

for the Ninth Circuit, Nwauzor v. GEO

Grp., Inc., No. 21-36024 (Jan. 16, 2025) ..... App-1

Appendix B

Order, United States Court of Appeals for

the Ninth Circuit, Nwauzor v. GEO Grp.,

Inc., No. 21-36024 (Aug. 13, 2025) ............ App-61

Appendix C

Opinion, Supreme Court of Washington,

Nwauzor v. GEO Grp., Inc., No. 101786-3

(Dec. 21, 2023) ........................................... App-97

Appendix D

Order, United States District Court for

the Western District of Washington,

Washington v. GEO Grp., Inc., No. 17-cv5806 (Dec. 10, 2018) ................................ App-121

Appendix E

Order, United States District Court for

the Western District of Washington,

Washington v. GEO Grp., Inc., No. 17-cv5806 (Aug. 6, 2019) .................................. App-132

viii

Appendix F

Civil Judgment, United States District

Court for the Western District of

Washington, Washington v. GEO Grp.,

Inc., No. 17-cv-5806 (Nov. 4, 2021) ......... App-150

Appendix G

Memorandum of Decision, United States

District Court for the Western District of

Washington, Washington v. GEO Grp.,

Inc., No. 17-cv-5806 (Dec. 8, 2021) .......... App-152

Appendix H

Order, United States District Court for

the Western District of Washington,

Nwauzor v. GEO Grp., Inc., No. C17-5769

(Apr. 7, 2020) ........................................... App-170

Appendix I

Civil Judgment, United States District

Court for the Western District of

Washington, Nwauzor v. GEO Grp., Inc.,

No. C17-5769 (Nov. 2, 2021) ................... App-195

Appendix J

Relevant Constitutional and Statutory

Provisions................................................. App-197

U.S. Const. art. VI, cl. 2 .......................... App-197

8 U.S.C. §1555 ......................................... App-197

TABLE OF AUTHORITIES

Cases

Alvarado-Guevara v. INS,

902 F.2d 394 (5th Cir. 1990).............................. 9, 32

Arizona v. California,

283 U.S. 423 (1931) ................................................ 35

Arizona v. United States,

567 U.S. 387 (2012) .................................... 6, 7, 8, 33

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) .................................................. 6

Buckman Co. v. Plaintiffs’ Legal Comm.,

531 U.S. 341 (2001) ................................................ 33

City of Detroit v. Murray Corp.,

355 U.S. 489 (1958) ................................................ 22

CoreCivic, Inc. v. Governor of N.J.,

145 F.4th 315 (3d Cir. 2025)................ 20, 21, 22, 23

Dawson v. Steager,

586 U.S. 171 (2019) ............................................ 5, 29

English v. Gen. Elec. Co.,

496 U.S. 72 (1990) .................................................... 6

GEO Grp., Inc. v. Newsom,

50 F.4th 745 (9th Cir. 2022) ............................ 23, 24

Goodyear Atomic Corp. v. Miller,

486 U.S. 174 (1988) ................................................ 26

Guevara v. INS,

1992 WL 1029 (Fed. Cir. Jan. 6, 1992) ................. 32

Hancock v. Train,

426 U.S. 167 (1976) ................................................ 27

Hines v. Davidowitz,

312 U.S. 52 (1941) ............................................ 33, 35

Johnson v. Maryland,

254 U.S. 51 (1920) .................................................. 27

Leslie Miller, Inc. v. Arkansas,

352 U.S. 187 (1956) ................................................ 27

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ......................... 3, 4, 5

Murphy v. NCAA,

584 U.S. 453 (2018) .................................................. 5

Ndambi v. CoreCivic, Inc.,

990 F.3d 369 (4th Cir. 2021).............................. 9, 32

North Carolina v. Ivory,

906 F.2d 999 (4th Cir. 1990).................................. 27

Osborn v. Bank of the U.S.,

22 U.S. (9 Wheat.) 738 (1824) ............................... 26

Pub. Utils. Comm’n v. United States,

355 U.S. 534 (1958) ................................................ 27

Toll v. Moreno,

458 U.S. 1 (1982) .................................................... 32

United States v. Town of Windsor,

765 F.2d 16 (2d Cir. 1985) ............................... 21, 22

United States v. Virginia,

139 F.3d 984 (4th Cir. 1998)............................ 22, 23

United States v. Washington,

596 U.S. 832 (2022) ...................................... 5, 19, 29

Washington v. United States,

460 U.S. 536 (1983) ................................................ 29

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007) ............................................ 6, 28

Willingham v. Morgan,

395 U.S. 402 (1969) ................................................ 28

Yearsley v. W.A. Ross Constr.,

309 U.S. 18 (1940) .................................................... 6

Constitutional Provision

U.S. Const. art. VI, cl. 2 ............................................. 4

Statutes

6 U.S.C. §112(b) .......................................................... 7

8 U.S.C. §1225(b) ........................................................ 7

8 U.S.C. §1226 ............................................................ 7

8 U.S.C. §1231(a) ........................................................ 7

8 U.S.C. §1231(g)(1) .................................................... 7

8 U.S.C. §1231(g)(2) .................................................... 7

8 U.S.C. §1555(d) .................................................. 8, 31

28 U.S.C. §1442(a)(1) ............................................ 6, 28

28 U.S.C. §530C(a)(4) ................................................. 7

N.J. Stat. Ann. §30:4-8.15(d) .................................... 22

Wash. Rev. Code §49.46.010(4)(k) ............... 10, 14, 29

Wash. Rev. Code §49.46.020(1)(a) ............................ 10

Pub. L. No. 95-431, 92 Stat. 1021 (1978) ................... 9

Pub. L. No. 110-329, 122 Stat. 3574 (2008) ............. 10

Regulations

8 C.F.R. §235.3(e) ....................................................... 7

48 C.F.R. §3017.204-90 .............................................. 7

PETITION FOR WRIT OF CERTIORARI

For nearly two decades, The GEO Group, Inc. has

provided detention, transportation, and food services

for the Northwest ICE Processing Center (“NWIPC”)

located in Tacoma, Washington, under contract with

the U.S. Immigration and Customs Enforcement

(“ICE”). Reflecting a federal mandate, that contract

requires GEO to offer the federal detainees at the

federal facility the opportunity to participate in a

voluntary work program. And reflecting a limit on

appropriations established by Congress, the contract

requires GEO to pay participating detainees at least

$1 per day; the federal government will reimburse

that amount—but no more. That reimbursement cap

has remained unchanged since 1979 and reflects the

reality that immigration detainees, the vast majority

of whom are ineligible for lawful employment in the

United States, are not employees for federal-law

purposes. Instead, the voluntary work program exists

to promote the safety of the facilities by avoiding

idleness and accompanying disciplinary issues. For

that reason, courts have long recognized that program

participants are not entitled to the federal minimum

wage. Washington, however, has very different ideas

about the proper compensation for participants in the

voluntary work program, so it decided to reclassify

them as state-law employees entitled to a far higher

state minimum wage that the state does not apply to

its own inmates.

Under bedrock Supremacy Clause principles, that

state effort to dictate the terms of a federal program

at a federal detention facility is foreclosed several

times over. By wresting control over a federal

program in a federal detention facility, the state has

directly regulated a federal function in violation of the

intergovernmental-immunity doctrine. By demanding that federal detainees be paid a wage the state is

unwilling to pay its own detainees, the state has

impermissibly discriminated against the federal government. And by interfering with a program established by Congress and treating federal immigration

detainees as ordinary state-law employees, the state

has taken action that is preempted by federal law.

In the divided decision below, the Ninth Circuit

blessed this remarkable inversion of the constitutional

order. It did so in full recognition that if Washington

had tried to impose its will on an immigration facility

run by the federal government itself, the Supremacy

Clause would block that effort. But the Ninth Circuit

insisted that the same rules do not apply when a

private service provider is involved. In the Ninth

Circuit’s view, once the federal government decides for

reasons of efficiency and flexibility to partner with a

private party to discharge a federal function, it opens

the door to state interference with that federal

function. That misguided decision has had enormous

practical consequences, including causing the federal

government to suspend the operation of its voluntary

work program—a program Congress wants to be

available nationwide—at the Tacoma facility.

The decision conflicts with the decisions of at least

three other circuits, which squarely reject the notion

that states may evade the Supremacy Clause by

regulating federal contractors rather than the federal

government. It conflicts with a long line of this Court’s

cases—stretching all the way back to McCulloch v.

Maryland, 17 U.S. (4 Wheat.) 316 (1819)—confirming

that states have no more leeway to obstruct the

execution of federal functions by a private party than

they do to obstruct the execution of federal functions

by the federal government itself. And it rejects the

position of the three most recent administrations

expressed in amicus briefs filed at every stage of the

proceedings below. Those administrations may have

strongly disagreed on immigration policy, but they

spoke with one voice in condemning Washington’s

effort to dictate the terms of a federal voluntary work

program for federal immigration detainees.

The Ninth Circuit’s decision cannot stand. At any

given time, some state will view federal immigration

policy as too harsh or too lax. The decision below

provides a roadmap for states to interfere with the

critical federal prerogative to establish a uniform

immigration policy. And beyond the immigration

context, there are countless areas where the federal

government looks to private contractors to provide the

flexibility and expertise it needs to efficiently

discharge federal functions. The decision below makes

the cost of enlisting such private-sector assistance an

open door for state interference in core federal

functions, including those in areas of unique federal

interest. That is not a cost that the Supremacy Clause

requires or this Court should tolerate. The Court

should grant certiorari and confirm that states cannot

demand of federal contractors performing federal

functions what they could not demand of the federal

government itself.

OPINIONS BELOW

The Ninth Circuit’s opinion is reported at 127

F.4th 750 and reproduced at App.1-60. The Ninth

Circuit’s order denying rehearing en banc and the

statements respecting that order are reported at 146

F.4th 1280 and reproduced at App.61-96.

The

Supreme Court of Washington’s opinion answering

questions certified by the Ninth Circuit is reported at

540 P.3d 94 and reproduced at App.97-120. The

relevant orders of the United States District Court for

the Western District of Washington are unreported

and are reproduced at App.121-196.

JURISDICTION

The Ninth Circuit issued its opinion on January

16, 2025, App.1, and denied a timely rehearing

petition on August 13, 2025, App.61. Justice Kagan

extended the time for filing a petition to January 9,

2026. This Court has jurisdiction under 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Pertinent constitutional and statutory provisions

are reproduced in the appendix.

STATEMENT OF THE CASE

A. Legal Background

1. The Supremacy Clause provides that the Constitution and federal statutes are “the supreme Law of

the Land.” U.S. Const. art. VI, cl. 2. This Court has

long held that state laws that regulate the federal

government and its instrumentalities are foreclosed

by the Supremacy Clause. See McCulloch, 17 U.S. at

432-37. That principle, known as intergovernmental

immunity, is “almost as old as the Nation” itself,

Dawson v. Steager, 586 U.S. 171, 173 (2019), and it

forbids states from attempting to invert the

constitutional order by enacting state laws that

“[i] directly regulate or [ii] discriminate against” the

federal government, United States v. Washington, 596

U.S. 832, 835 (2022). There is an obvious temptation,

also as old as the Nation itself, for states to interfere

with certain national policies that Congress has

deemed national imperatives, but that are locally

unpopular. In the early days of the Republic, the First

Bank of the United States provided the flash point. In

more recent days, federal immigration policy has been

viewed with suspicion of being either too lax or too

unforgiving, depending on the state and the prevailing

federal enforcement posture. But the through line

across the varying pressing issues of the day is that

states cannot interfere with the federal government’s

operations, for “[i]t is of the very essence of supremacy,

to remove all obstacles to its action within its own

sphere.” McCulloch, 17 U.S. at 427.

Another aspect of the Supremacy Clause is

Congress’ undoubted power to preempt state law when

it validly legislates on matters of federal concern.

Although this Court’s cases have recognized various

flavors of preemption—e.g., “conflict,” “express,”

“field”—“all of them work in the same way.” Murphy

v. NCAA, 584 U.S. 453, 477 (2018). Congress enacts

laws expressing a federal policy and charging federal

agencies with implementing it; “a state law confers

rights or imposes restrictions that conflict with the

federal law; and therefore the federal law takes

precedence and the state law is preempted.” Id. The

touchstone for resolving preemption claims, then, is

congressional intent. See English v. Gen. Elec. Co.,

496 U.S. 72, 78-79 (1990).

Both Congress and this Court have recognized the

special status of federal contractors and the

importance of ensuring that they do not face liability

under state law for assisting the federal government

in discharging federal responsibilities that are

nationally important, but locally unpopular. For

example, Congress has expressly provided and

continuously expanded a federal forum not just for

federal officers, but for those “acting under” them. 28

U.S.C. §1442(a)(1). As this Court has observed,

federal contractors are the quintessential example of

those acting under federal officers. See Watson v.

Philip Morris Cos., 551 U.S. 142, 153-54 (2007). And

the federal forum ensures that federal contractors will

get a fair adjudication of their colorable federal

defenses, which in many cases stem from the federal

contract itself. See Boyle v. United Techs. Corp., 487

U.S. 500, 505-09 (1988). Moreover, federal contractors

cannot be held liable for discharging their contractual

obligations when “what was done was within the

constitutional power of Congress.” Yearsley v. W.A.

Ross Constr., 309 U.S. 18, 20-21 (1940).

2. When it comes to “the subject of immigration

and the status of aliens,” “[t]he Government of the

United States has broad, undoubted power.” Arizona

v. United States, 567 U.S. 387, 394 (2012). The exercise

of that national power has obvious ramifications for

employers and local communities across the Nation,

which, depending on the prevailing national policies,

may view federal enforcement as too harsh or too lax.

For that reason, this Court has repeatedly held that

federal law displaces state laws that frustrate federal

immigration policy. See, e.g., id. at 400-16.

Exercising that broad and distinctly federal

power, Congress has mandated that certain aliens be

detained pending their immigration proceedings. See

8 U.S.C. §§1225(b), 1226, 1231(a). To that end,

Congress directed the executive branch to “arrange for

appropriate places of detention,” and authorized the

Attorney General to “acquire” or “build” detention

facilities if existing federal facilities “are unavailable”

or unsuitable. Id. §1231(g)(1). Mindful of the cost of

building new facilities, Congress directed agencies to

“consider the availability” of existing detention

centers that could be leased “[p]rior to” building new

facilities. See id. §1231(g)(2). Entering contracts to

make use of those facilities comes within further

congressional authorization for the Secretary of

Homeland Security to “carr[y] out,” “in [her]

reasonable discretion,” the activities of ICE “through

any means, including ... through contracts, grants, or

cooperative agreements with non-Federal parties,”

unless such agreements are otherwise precluded by

federal law. 28 U.S.C. §530C(a)(4); see also 6 U.S.C.

§112(b).

Consistent with that congressional directive, the

executive branch has promulgated regulations that

allow ICE to contract with private detention facilities

to house federal immigration detainees. See 48 C.F.R.

§3017.204-90; 8 C.F.R. §235.3(e). ICE, in turn, relies

on an extensive network of privately owned facilities

to house tens of thousands of detainees—roughly 80

percent of all federal immigration detainees.

D.Ct.Dkt.577 at 35. The federal contractors that

provide detention services at those facilities carry out

the federal government’s immigration policy.

D.Ct.Dkt.577 at 34-35.

ICE relies heavily on privately owned facilities in

part because the fluctuating number and location of

detainees makes it difficult to predict when and where

space will be needed. C.A.Dkt.114 at 3-4. By

contracting for the exclusive use of infrastructure that

privately owned facilities already have in place, ICE

avoids wasting resources constructing facilities that

end up unnecessary or underutilized.

Private

contractors can also rapidly adapt to changing

circumstances.

3. Among the most controversial aspects of federal

immigration policy is the extent to which immigrants

are eligible for lawful employment in the United

States. As a general matter, those who are not in the

country lawfully are ineligible for employment in the

United States. See Arizona, 567 U.S. at 404. Thus,

detainees in ICE facilities are typically ineligible for

employment as a matter of federal law.

See

C.A.App.151. Nonetheless, Congress has long recognized the benefits of giving immigration detainees a

limited opportunity to perform work during their

federal detention.

Shortly after World War II, Congress authorized

appropriation of funds to INS (now ICE) for the

“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). Congress established that voluntary work

program based on its determination that keeping

immigration detainees engaged with meaningful labor

serves federal interests, such as preserving order.

D.Ct.Dkt.568 at 141.

Every ICE detention facility—whether operated

by the agency itself or by federal contractors—must

offer detainees the opportunity to participate in a

voluntary work program.

D.Ct.Dkt.577 at 86.

Congress capped what the federal government may

reimburse detainees for participation in the work

program at $1 per day. See Pub. L. No. 95-431, 92

Stat. 1021, 1027 (1978). Accordingly, while federal

law does not expressly preclude federal contractors

from paying detainees more, the restriction on using

appropriated funds to pay more than $1 a day acts as

a de facto cap. Despite occasional proposals to raise

that cap, it has remained unchanged since it was set

in 1979, even as the federal minimum wage has

increased. In recognition of immigration detainees’

ineligibility for lawful employment, and the specificity

with

which

Congress

has

addressed

the

reimbursement rate for such detainees, courts have

routinely held that the Fair Labor Standards Act has

no application to immigration detainees. See Ndambi

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

Alvarado-Guevara v. INS, 902 F.2d 394 (5th Cir. 1990)

(per curiam).

B. Factual Background

1. In 2005, ICE entered into a contract with GEO

to provide detention, transportation, and food services

for its facility in Tacoma, Washington. C.A.App.68. As

the only dedicated ICE detention facility in

Washington, the NWIPC serves a critical role in the

federal government’s immigration operations in the

Pacific Northwest.

As with all other ICE detention facilities, GEO is

required under its contract with ICE to give detainees

the opportunity to participate in the voluntary work

program Congress authorized. C.A.App.68. GEO’s

contract requires it to pay participating detainees “at

least $1.00 (USD) per day” and caps GEO’s

entitlement to federal reimbursement at that rate.

C.A.App.69; see Pub. L. No. 110-329, 122 Stat. 3574,

3659 (2008) (requiring compliance with national

standards to receive funding). In 2017, Washington’s

attorney general began investigating the voluntary

work program at NWIPC after receiving complaints

from detainees.

At the time, Washington’s Minimum Wage Act

(“MWA”) required covered “employees” working in the

state to be paid $11 per hour. See Wash. Rev. Code

§49.46.020(1)(a). The MWA’s definition of “employee”

is subject to more than a dozen exceptions, including

one for “[a]ny resident, inmate, or patient of a state,

county, or municipal correctional, detention,

treatment

rehabilitative

institution.”

Id.

§49.46.010(4)(k) (emphasis added).

Washington

accordingly need not and does not pay detainees

minimum wage under the voluntary work programs it

offers in its own detention facilities; it instead caps

their compensation at $40 a week. See App.38

(Bennett, J., dissenting). But Washington does not

provide a comparable exception for federal detainees.

That presumably reflects the state’s recognition of its

inability to regulate federal instrumentalities at all.

Yet the attorney general took the absence of an

express exception for federal detainees to argue that

GEO must pay federal detainees who participate in

the federal work program not $1 per day, but $11 per

hour (the then-existing state minimum wage, which

has since increased to $17.13 an hour).

The

attorney

general’s

investigation

culminated in two consolidated lawsuits against GEO,

one brought by the state, C.A.App.408, and the other

on behalf of a class of detainees at the NWIPC who

participated in the voluntary work program, see

C.A.App.446-50. GEO objected that federal law bars

the state from classifying detainees as “employees”

under the MWA, and that both intergovernmentalimmunity and preemption principles bar Washington

from dictating the pay scale for federal detainees

participating in a federal voluntary work program. As

for its immunity defense, GEO argued that

Washington was both unlawfully regulating and

impermissibly discriminating against the federal

government since the state exempts work programs at

its own detention facilities. As for preemption, GEO

argued that forcing it to pay federal detainees the

state minimum wage intrudes on the exclusively

federal field of immigration detention and conflicts

with federal law.

The United States filed a statement of interest in

the district court condemning the “aggressive and

legally unjustified effort by the State of Washington to

interfere with federal immigration enforcement.”

C.A.App.406. It urged the court to hold the MWA

“invalid as applied to federal contractors,” explaining

that Washington’s effort to dictate what federal

contractors must pay federal detainees under a federal

work program—and to require them to pay more than

the state pays its own detainees, to boot—is

preempted and violates the intergovernmentalimmunity doctrine. C.A.App.420-21.

The district court refused to dismiss, and after a

trial, entered a $37 million judgment against GEO and

enjoined GEO from operating the voluntary work

program unless it pays federal detainees the state

minimum wage. C.A.App.2-3, 13, 35, 37-38. As a

result of the crippling costs that would impose, and

given the appropriations cap on reimbursing more

than $1 a day, GEO received ICE’s permission to cease

offering the program at NWIPC altogether. App.54

(Bennett, J., dissenting).

3. GEO appealed, and the Ninth Circuit certified

multiple questions to the Washington Supreme Court,

including: (1) whether federal detainees in NWIPC’s

work program are “employees” under the MWA, and

(2) if so, whether the MWA would apply to state

detainees in work programs operated by state

contractors at privately owned facilities—a purely

hypothetical question, as Washington prohibits the

use of private contractors for detention. C.A.Dkt.97 at

15-16. The Ninth Circuit also invited the United

States to submit an amicus brief. C.A.Dkt.95 at 1-2.

The Washington Supreme Court held that, as a

matter of state law, federal detainees who participate

in the federal voluntary work program are

“employees” under the MWA. See App.104-05. And it

opined that if (contrary to fact and state law) the state

contracted with private detention facilities with work

programs, those facilities would need to comply with

the MWA, despite the exemption for state, county and

municipal detention facilities.

See App.106-07,

App.37-48 (Bennett, J., dissenting).

Meanwhile, the United States filed an amicus

brief that, despite a change of administration,

continued to argue that Washington’s effort to subject

federal detainees to a state minimum-wage law is both

preempted and precluded by intergovernmental

immunity. As it explained, Washington plainly could

not require ICE to pay the state minimum wage if ICE

ran the facility itself. C.A.Dkt.114 at 2. And “[i]t is no

more permissible to treat the same federal detainees

as employees if they are housed in a facility owned and

operated by a federal contractor.” Id. The United

States likewise agreed with GEO that federal law

preempts Washington’s effort to dictate what federal

detainees must be paid under the federal voluntary

work program. See id.

4. A divided panel of the Ninth Circuit affirmed.

App.1-34. The majority first rejected the argument

that forcing a federal contractor to pay federal

detainees participating in a federal program a stateset minimum wage impermissibly regulates a federal

function in violation of the intergovernmentalimmunity doctrine. App.10-16. The majority did not

dispute that the doctrine would bar Washington from

requiring ICE to pay federal detainees the state

minimum wage if ICE operated the facility itself. But

the majority thought it made all the difference that

“GEO[,] … a private for-profit company … operates”

that facility, because “[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

instrumentality.” App.10-11.

other

federal

The majority also rejected the argument that the

MWA impermissibly discriminates against the federal

government, relying principally on the Washington

Supreme Court’s holding that the MWA would apply

to state detainees at a private facility if there were

any. App.16-25. By relying on an advisory opinion

about an entirely hypothetical scenario, the majority

sidestepped the reality that the MWA exempts state

and local detention facilities, yet contains no

exemption for federal detention facilities, App.38-40

(Bennett, J., dissenting).

Finally, the court rejected the preemption

argument advanced by GEO and the United States.

The majority began by invoking the presumption

against preemption on the theory that “[t]he MWA

falls squarely within the states’ historic police powers

to establish and require payment of a minimum wage.”

App.27. And it held that the presumption is not

overcome because federal law caps reimbursement at

$1 per day, without expressly forbidding GEO from

paying detainees more. App.29.

Judge Bennett dissented on both issues. On intergovernmental immunity, he found it obvious that

Washington’s effort to impose a state minimum wage

on federal detainees, while exempting state and local

detainees, unconstitutionally discriminates against

the federal government and its contractors. App.3548; see Wash. Rev. Code §49.46.010(4)(k). “Put simply,

if the NWIPC were run by Washington, the facility

would not be forced to pay detainees the minimum

wage.” App.40. “But because NWIPC is run by a

federal contractor, the facility must pay that

minimum wage.” App.40. “That is the very definition

of a state affording itself better treatment than it

affords the United States,” in violation of the

Supremacy Clause. App.40.

Turning to preemption, Judge Bennett found the

presumption against preemption wholly inapposite to

the state’s effort to regulate federal detainees and a

federal contractual relationship in the immigration

context. App.55-56. And he concluded that the lack of

an express federal prohibition on paying inmates more

than $1 per day at most rules out impossibility

preemption but does not avoid the obvious conflict

with the congressional limit on using appropriated

funds to reimburse more than $1 per day. App.48-60.

Judge Bennett warned that the panel’s decision

will have “serious ramifications for the United States

operating immigration detention facilities around the

country,” App.48—ramifications that had already

been seen when the district court’s judgment forced

GEO to obtain ICE’s permission to shut down the

voluntary work program entirely, App.54.

5. GEO petitioned for rehearing en banc, and the

United States, after yet another administration

change, filed another amicus brief reiterating that

both intergovernmental immunity and preemption

preclude Washington’s effort to apply its state

minimum-wage law to federal detainees—especially

when the state exempts its own detention facilities.

The Ninth Circuit denied the petition over the dissent

of seven judges, with dissenting opinions authored by

Judges Bumatay and Collins. App.61-96.

Judge Bumatay, joined by Judges Callahan and

VanDyke, began by explaining that the “fundamental

question” is “whether the Supremacy Clause protects

a federal program, performed by federal contractors,

from state regulation.” App.73. The answer “must be

‘yes,’” he reasoned, because “[w]hen 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.” App.7374. It has been clear since at least McCulloch, he

explained, that intergovernmental immunity applies

with the same force “if the federal government chooses

to use contractors to execute” federal policy rather

than to carry out that federal policy itself. App.74.

Judge Bumatay also explained that it made no sense

to treat ICE detainees ineligible for lawful

employment in the United States as employees subject

to state minimum-wage law. App.72-73, 93-94. He

warned that the panel’s contrary conclusion “set[] a

dangerous precedent” that will empower states to

“undermine federal operations based on policy

disagreements whenever federal contractors are

involved.” App.74.

Judge Collins, joined by Judges R. Nelson and

Bress, issued a statement noting that they would have

granted rehearing for the reasons set forth in Judge

Bennett’s dissent.

App.96.

Meanwhile, Judges

Murguia and W. Fletcher, the two judges in panel

majority, issued a statement reiterating that they

“strongly disagree” with the dissenters’ view that

federal contractors stand on equal footing with the

federal government for intergovernmental-immunity

purposes. App.63.

REASONS FOR GRANTING THE PETITION

The decision below inverts our constitutional

order by holding that a state may impose a minimumwage law on federal detainees, while exempting its

own state detainees. The Supremacy Clause prohibits

that counterintuitive result twice over.

First, bedrock principles of intergovernmental

immunity tracing back at least to McCulloch v.

Maryland preclude Washington’s effort to interfere

with and discriminate against federal operations. The

decision below evaded that established law by treating

federal contractors performing a quintessential

federal function as entitled to substantially

diminished protection from state interference. That

result is deeply flawed and works its own interference

with federal prerogatives by creating artificial

incentives to avoid private contracting, even when

efficiencies and congressional policy favors employing

more flexible private-sector expertise and resources.

It also creates a clear circuit split with decisions from

the Second, Third, and Fourth Circuits, which all

(correctly) hold that states cannot evade the force of

the Supremacy Clause by targeting federal

contractors instead of the federal government itself.

Second, the decision below incorrectly ignores the

position of the United States, reiterated by three

successive administrations with very different

immigration policies, that Washington’s law is

preempted and interferes with the efficient

administration of federal immigration policy. The

federal government has uniquely national interests in

and correspondingly broad powers over immigration.

As relevant here, Congress has made clear that illegal

immigrants are ineligible for lawful employment, that

private contractors provide vital flexibility for

changing detention needs, that federal immigration

detainees should have the option of participating in

voluntary work programs, and that reimbursements

for participation in those programs from appropriated

funds should be capped at $1 a day. States are free to

criticize those federal judgments, but they are not free

to countermand them with contrary state legislation—

especially legislation that they do not apply to their

own detainees. The decision below missed that

obvious conclusion only by importing a presumption

against preemption into just about the last context

where it should apply, and then disregarding anything

short of impossibility preemption.

The Ninth Circuit’s decision is as exceptionally

important as it is exceptionally wrong. Immigration

is a core and uniquely federal responsibility, and a

recurring source of tension with the states. Depending

on the prevailing federal policies, some states will

think enforcement is too lax, while others will view

enforcement as too harsh. But though immigration

priorities may have vacillated, the United States has

spoken with one voice across the past three

administrations about the palpable threat that

Washington’s misguided effort to apply its state

minimum-wage law to immigration detainees poses to

federal immigration policy—and to every other federal

policy carried out by contractors rather than

government employees.

The federal government has long relied on private

contractors to assist with its varying need for

immigration detention. The decision below poses a

direct threat to its ability to do so—as evidenced by the

fact that it has forced ICE to shut down the federal

voluntary work program at the NWIPC facility

altogether. Washington has thus succeeded in frustrating federal immigration policy. Meanwhile, ICE’s

policy of giving all immigration detainees, whether

detained in ICE’s own facilities or in private facilities,

the chance to participate in voluntary work programs

continues unabated at ICE facilities outside the Ninth

Circuit. The Court should grant certiorari to resolve

the circuit split that the Ninth Circuit is on the wrong

side of, and to confirm that states may not obstruct

federal functions, period—whether the object of their

regulation is the federal government or the private

contractors it enlists to carry out those functions.

The

Supremacy

Clause

Forbids

Washington’s

Effort

Impose

Its

Minimum-Wage Law On Federal Detainees

While Exempting The State’s Own Detainees

From Its Burdens.

The last time this Court addressed the intergovernmental-immunity doctrine, it reiterated that

states can neither directly regulate the federal

government nor “‘discriminat[e] against the Federal

Government or those with whom it deals,’ (e.g.,

contractors).” Washington, 596 U.S. at 838. That

lesson should not have been lost on Washington or the

Ninth Circuit, as that case reversed a Ninth Circuit

decision permitting Washington to impose its will on

the federal government. Undeterred, the Ninth

Circuit blessed Washington’s latest effort to impose its

will on the federal government, this time imposing

burdens on federal contractors that Washington

eschews as to its own detainees. That decision flies in

the face of this Court’s precedent and splits with three

circuits that have squarely held that states may not

regulate federal functions by targeting the contractors

through which the United States acts.

A. The Circuits Are Divided Over How the

Intergovernmental-Immunity Doctrine

Applies When States Regulate Federal

Contractors.

Courts of appeals have adopted two irreconcilable

rules for deciding when state regulations of federal

contractors violate the intergovernmental-immunity

doctrine. The Second, Third, and Fourth Circuits hold

that a state cannot circumvent intergovernmental

immunity by regulating federal contractors: If a regulation has the same practical effect—or “the same

sting,” CoreCivic, Inc. v. Governor of N.J., 145 F.4th

315, 322 (3d Cir. 2025)—as regulation of the federal

government itself, then it is barred. The Ninth

Circuit, by contrast, holds that federal contractors’

intergovernmental-immunity protection is “substantially narrower” than the federal government’s, such

that states may regulate contractors in ways that they

concededly could not regulate the federal government

itself.

That split is entrenched, was outcomedeterminative here, and warrants this Court’s review.

1. The Second, Third, and Fourth Circuits all hold

that states cannot evade intergovernmental immunity

by regulating federal contractors instead of regulating

the federal government itself. When a private party

contracts with the federal government to perform a

federal function, those courts afford the contractor the

same immunity the federal government would enjoy if

it performed the work through its own employees.

The Second Circuit first reached that conclusion

in United States v. Town of Windsor, 765 F.2d 16 (2d

Cir. 1985). There, the Department of Energy contracted with the General Electric Company (“GE”) to

manage a nuclear research and training facility in

Windsor, Connecticut. Id. at 17. At DOE’s direction,

GE began construction. Id. Nuclear research was

about as popular in Connecticut in the 1980s as

federal immigration enforcement is in Washington

state today. So when the town learned of that federal

work, it ordered GE to cease construction until it

obtained certain state-law permits. Id. GE refused,

prompting litigation. Although Windsor acknowledged that the Supremacy Clause would forbid it from

“demand[ing] compliance with the Code from the

government” itself, it maintained that “it may demand

compliance from the Government’s contractors.” Id. at

18.

The Second Circuit squarely rejected that

argument. As it explained, “[e]nforcement of the

substance of the permit requirement against the

contractors would have the same effect as direct

enforcement against the Government.” Id. at 19.

“Either way,” applying the state’s law would frustrate

the federal government’s objectives. Id.

The Third Circuit’s recent decision in CoreCivic,

Inc. v. Governor of New Jersey, 145 F.4th 315 (3d Cir.

2025), reached the same conclusion. That case

involved a New Jersey law that barred any “new,

expanded, or renewed agreements to detain people for

civil immigration purposes” within the state. N.J.

Stat. Ann. §30:4-8.15(d). By design, the law forced a

private company to cease operating an ICE detention

center in New Jersey. 145 F.4th at 319. Although the

court found the structure of the law “admittedly

clever” because it regulated contractors rather than

ICE directly, it saw “the law for what ‘it really is’: a

direct regulation on the federal government” that

“violates intergovernmental immunity.” Id. And like

the Second Circuit before it, see id. at 326 (citing

Windsor, 765 F.2d at 19), the court rejected the state’s

view that it could evade the Supremacy Clause by

regulating federal contractors rather than “the federal

government directly,” id. at 321-22. Heeding this

Court’s admonition to “‘look through form and behind

labels to substance’” when “gauging intergovernmental immunity,” id. at 322 (quoting City of Detroit v.

Murray Corp., 355 U.S. 489, 492 (1958)), the court

held the law invalid, as it “carrie[d] the same sting as

a law whose text applies expressly to the federal

government,” id.

The Fourth Circuit, too, has reached the sensible

conclusion that states cannot evade the Supremacy

Clause by training their sights on federal contractors.

See United States v. Virginia, 139 F.3d 984 (4th Cir.

1998). The law in Virginia required private investigators to obtain a state license. Id. at 985-86. When the

Commonwealth threatened to enforce that requirement against private investigators who served as

independent contractors for the FBI, the Bureau and

one of the contractors sued. Id. at 986-87. The Fourth

Circuit held that Virginia could not force the FBI’s

contractors to obtain state licenses because that would

impermissibly burden the federal government’s ability

to select and use its chosen agents to carry out federal

functions. Id. at 989-90.

The common thread among these decisions is that

states cannot evade the Supremacy Clause by

regulating federal contractors rather than the federal

government. As each court has recognized, so long as

a state law “carries the same sting” as a law that

directly regulates or discriminates against the federal

government, CoreCivic, 145 F.4th at 322, it makes no

difference that a state has accomplished those

forbidden ends by regulating federal contractors.

2. The Ninth Circuit eschews that dominant

approach in favor of deeming “a federal contractor’s

protection from state law” “substantially narrower”

than the federal government’s. App.10-11 (quoting

GEO Grp., Inc. v. Newsom, 50 F.4th 745, 755 (9th Cir.

2022) (en banc)). Under Ninth Circuit law, the federal

government’s immunity from state regulation of a

federal function does not extend to a federal contractor

carrying out the precise same function.

The decision below is illustrative. Consider first

the court’s rejection of GEO’s direct-regulation

defense. GEO (joined by the United States at every

stage of the litigation) argued that “[t]here can 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.” App.11. The Ninth Circuit

did not disagree; it instead declared that “obvious[ly]”

irrelevant because, under circuit precedent, “a federal

contractor’s protection from state law” is “substan-

tially narrower” than the federal government’s,

App.10-11 (quoting GEO Grp., 50 F.4th at 755).

The Ninth Circuit employed the same reasoning

when it came to GEO’s nondiscrimination argument.

App.16-25. Washington exempts inmates at its own

detention facilities from its minimum-wage laws.

Thus, demanding compliance for participants in a

federal voluntary work program is rank discrimination against federal operations. But Washington,

unlike the federal government, does not use private

detention facilities. The Ninth Circuit used that

distinction—along with the Washington Supreme

Court’s answer to an entirely hypothetical question

whether the minimum-wage law would apply to

private state prisons if they existed—to ignore that

clear discrimination. The majority agreed that “[i]f

the federal government operated NWIPC directly,”

there would be “a good argument” that forcing it to pay

participants in the federal program the state

minimum wage would violate the nondiscrimination

principle since the state exempts detainees in state

and local detention centers from the MWA. App.16.

“But that hypothetical case” is irrelevant, the court

posited, because the federal government chose to

contract with a private party rather than to operate

the NWIPC facility itself. Id. at 16-17. Once again,

the court insisted that states have greater leeway to

discriminate against contractors who perform federal

functions because “private, for-profit entities” that

enter into such contracts do not “enjoy[]” the “same

intergovernmental immunity protection … [as] the

federal government” itself. App.22.

The panel majority doubled down on that reasoning when denying rehearing en banc. In his dissent

from denial, Judge Bumatay homed in on the majority’s claim that federal contractors are entitled to less

intergovernmental-immunity protection than the federal government.

Rejecting that premise, he

explained that “[w]hen a federal contractor acts on

behalf of the federal government to administer a

federal function[,] … the contractor is not merely a

private business; it steps into the shoes of the federal

government for Supremacy Clause purposes.” App.7374. The panel majority responded by issuing a statement “strongly disagree[ing]” with Judge Bumatay’s

position, and reiterating their view that there is a

“fundamental distinction between the federal government and its contractors” when it comes to intergovernmental immunity under the Supremacy Clause.

App.65.

In short, the circuits are squarely divided over

whether, for intergovernmental-immunity purposes, a

federal contractor stands in the federal government’s

shoes and is entitled to the same immunity from state

interference as a federal instrumentality or employee

when performing a federal function. That division of

authority necessitates this Court’s resolution.

B. The Ninth Circuit’s IntergovernmentalImmunity Holding Is Profoundly Wrong.

The Ninth Circuit is on the short side of a circuit

split for a reason: The decision below is irreconcilable

with this Court’s precedent. As this Court has recognized for centuries, states cannot evade the Supremacy Clause by targeting those who perform critical

federal functions under contract in lieu of targeting

the federal government itself. Indeed, the dichotomy

erected by the Ninth Circuit not only fails to protect

federal functions from state interference, but interferes with the federal government’s discretion to

decide whether federal functions—like housing

federal detainees awaiting federal process—are best

done via agreement with federal contractors or by the

federal government itself.

1. Starting with GEO’s direct-regulation defense,

as this Court has long explained, “the federal function

must be left free of state regulation” even when “the

federal function is carried out by a private contractor.”

Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 181

(1988). That principle traces back to the Nation’s

earliest years. As Judge Bumatay wrote, in McCulloch, this Court famously vindicated the Supremacy

Clause even though “Maryland taxed the Bank of the

United States, which was neither a federal agency nor

run by federal employees.” App.90. Several years

later, “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.” App.91 (quoting Osborn v. Bank

of the U.S., 22 U.S. (9 Wheat.) 738, 866 (1824)).

This Court has never retreated from the commonsense notion that states cannot interfere with

federal objectives by targeting private contractors who

act under the direction of full-time federal officials in

discharging federal functions. For example, this

Court has struck down under the Supremacy Clause

laws requiring federal contractors to secure state

approval before charging certain rates, see Pub. Utils.

Comm’n v. United States, 355 U.S. 534, 543-44 (1958),

to obtain a state license before initiating construction

projects, see Leslie Miller, Inc. v. Arkansas, 352 U.S.

187 (1956) (per curiam), to procure a state-issued

driver’s permit before delivering the mail, see Johnson

v. Maryland, 254 U.S. 51, 57 (1920), and to obtain an

air-pollution permit before operating a uraniumprocessing facility, see Hancock v. Train, 426 U.S. 167,

174 n.23, 180 (1976). The state laws in each instance

were nondiscriminatory, yet they were held unconstitutional as applied to the federal contractors because

they “interrupt[ed] the acts of the general government

itself.” Johnson, 254 U.S. at 55.

Of course, not all state regulation of federal

contractors violates the Supremacy Clause—just as

not all regulation of the federal government violates

the Supremacy Clause. See Hancock, 426 U.S. at 179.

Federal employees and contractors alike must follow

state laws that do not interfere with their ability to

carry out a federal function. See, e.g., North Carolina

v. Ivory, 906 F.2d 999, 1000-02 (4th Cir. 1990) (finding

a federal postal worker subject to liability under local

traffic laws because he did not allege that “anything

in the conduct of his federal responsibilities …

justified his violation of these laws”). But the Ninth

Circuit did not reject GEO’s immunity defense

because it concluded that dictating what the federal

contractor must pay federal detainees under a federal

voluntary work program would not interfere with any

federal function; to the contrary, the court assumed

that it would. The court rejected GEO’s immunity

defense nonetheless because, under Ninth Circuit

precedent, 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.” App.10-11. That rule is no

more compatible with this Court’s precedent than it is

with the law of the Second, Third, and Fourth Circuits.

The Ninth Circuit’s view is also impossible to

square with Congress’ repeated judgment that private

contractors “acting under” full-time officials have

every bit as much of a need for and entitlement to a

federal forum as full-time federal officials. See 28

U.S.C. §1442(a)(1). Congress has consistently expanded the reach of that statutory protection for those

“acting under” federal officers, and this Court has

recognized as much in insisting that the statute

“should not be frustrated by a narrow, grudging

interpretation.” Willingham v. Morgan, 395 U.S. 402,

407 (1969). Indeed, this Court has recognized that the

quintessential example of one “acting under” a federal

officer is a federal contractor supplying the federal

government with good and services it needs. Watson,

551 U.S. at 153-54. The whole point of that statutory

protection is to ensure a federal forum for litigating a

federal defense, such as intergovernmental immunity

or preemption. The Ninth Circuit’s “narrow, grudging

interpretation” of intergovernmental immunity for

government contractors thus runs counter to the

consistent judgments of both Congress and this Court.

Willingham, 395 U.S. at 407.

2. The Ninth Circuit’s grounds for rejecting GEO’s

nondiscrimination claim fare no better. Just a few

Terms ago, this Court reaffirmed—in another case

reversing a Ninth Circuit decision sanctioning a

Washington law, no less—that states may not

“‘discriminat[e] against the Federal Government or

those with whom it deals,’ (e.g., contractors).”

Washington, 596 U.S. at 838 (emphases added).

States violate that rule when they “trea[t] someone

else better than [they] treat[]” the federal government,

Washington v. United States, 460 U.S. 536, 544-45

(1983), like when they grant themselves favorable tax

exemptions that do not apply to federal actors, see

Dawson, 586 U.S. at 176, or impose novel regulatory

obligations uniquely on federal actors, see Washington, 596 U.S. at 838-39. And it has long been settled

that that rule applies with equal force whether the

target of state regulation is the federal government or

a party with whom it contracts—as was the case in

Washington. See id.

Here, the MWA discriminates against the federal

government on its face because it provides state and

local detention facilities with an exemption that it

does not extend to federal detention facilities. See

Wash. Rev. Code §49.46.010(4)(k); cf. Dawson, 586

U.S. at 173-80 (holding unlawful a state law that

granted state, but not federal, law enforcement officers a tax exemption). One might have thought the

failure to expressly carve out federal detainees simply

reflects that the legislature did not even contemplate

that the state statute would—or could lawfully—apply

to federal detainees involved in a federal voluntary

work program. But the Washington Supreme Court

confirmed that, under state law, federal immigration

detainees are “employees” and thus presumptively

subject to the MWA. Under those circumstances, the

MWA’s exemption of state, but not federal, detainees

is the kind of rank discrimination that plainly violates

the Supremacy Clause.

The Ninth Circuit evaded that straightforward

conclusion by seizing on the state supreme court’s

dictum that the MWA would apply to a private entity

housing state inmates if (contrary to fact and state

law) any such privately housed inmates existed. That

entirely hypothetical determination led the Ninth

Circuit to claim that there is no discrimination even

though the net effect is that federal detainees (who by

virtue of their immigration status are ineligible for

normal work) are subject to the MWA, while state

inmates are exempt and paid sums far below the

minimum wage foisted on the federal program. That

effort to ignore the undeniable practical operation of

Washington’s law fares no better than the Ninth

Circuit’s misguided notion that federal contractors

have a substantially diminished claim to intergovernmental immunity even when they discharge

uniquely federal functions for the federal government.

C. The Ninth Circuit’s Preemption Analysis

Is Equally Wrong.

The Ninth Circuit further erred in rejecting the

preemption argument advanced by GEO and the most

recent three administrations. Congress controls the

field of immigration detention. That is apparent not

only in the constitutional assignment of immigration

to the federal government, but in numerous statutes

charging the Secretary of Homeland Security with

regulating the conditions of detention at all ICE

facilities. See supra, pp.7-9. Among the regulations is

a requirement that federal immigration detainees,

whether housed in federal-owned or contracted-for

facilities, should have the opportunity to participate in

voluntary work programs.

That opportunity advances several federal

objectives, including easing the impact of confinement

by decreasing idleness, improving morale, and

reducing disciplinary incidents. Congress also decided

that detainees who participate in voluntary work

programs should receive “allowances at []such rate as

may be specified” by appropriations from Congress. 8

U.S.C. §1555(d). Congress set that rate at $1 per day,

and expressly provided that appropriated funds may

not be used to provide reimbursements in amounts

greater than that cap. That amount strikes a balance

among several competing factors, including providing

incentives for participating, containing the costs of

operating federal detention centers, and avoiding the

anomaly of paying immigration detainees who are

generally ineligible for lawful work in the United

States anything like a normal wage.

Those congressional policies were translated into

the terms of GEO’s contract with ICE, which specified

the $1 a day rate as the maximum rate at which the

federal government would compensate GEO for

fulfilling its obligation to operate the federal voluntary

work program. To be sure, nothing in that contract or

federal law expressly precludes GEO from paying

detainees more. But the cap on federal reimbursement from appropriated funds generally acts as a

practical cap on what federal contractors pay.

By reclassifying detainees as employees receiving

wages governed by the MWA, Washington has

“displace[d] the contractual floor established by

Congress and solidified in the contract between ICE

and GEO,” App.55 (Bennett, J., dissenting), and

replaced it with a floor that is orders of magnitude

higher than what Congress authorized, what the

parties’ contract contemplates, and what ICE agreed

to reimburse. That plainly frustrates the purpose of

federal law, as evidenced by the fact that ICE agreed

to call a halt to the voluntary work program at

NWIPC, notwithstanding Congress’ clear judgment

that voluntary work programs should be an option for

all immigration detainees, whether housed by the

federal government or by federal contractors, and

whether the private facilities are located within or

without the Ninth Circuit.

The conflict runs deeper still, as federal law

generally views the classes of immigrants subject to

federal detention as ineligible for lawful employment.

In part for that reason, courts have consistently

rejected the argument that participants in these

programs are subject to the federal minimum wage or

other protections of the Fair Labor Standards Act. See

Ndambi, 990 F.3d at 374; Alvarado-Guevara, 902 F.2d

at 396; Guevara v. INS, 1992 WL 1029 (Fed. Cir. Jan.

6, 1992). The decision below overrides that federal

policy by treating participants in the federal program

as lawful workers entitled to state minimum-wage

laws. While states have considerable latitude to

define employees for purposes of state law, they are

not free to do so in ways that frustrate important

federal policies, including federal policies concerning

the eligibility of immigrants for lawful employment.

See, e.g., Toll v. Moreno, 458 U.S. 1, 10-19 (1982).

The Ninth Circuit’s contrary conclusion is the

product of (at least) two fundamental errors. First, the

majority’s reliance on the presumption against

preemption was wholly misplaced.

App.55-56

(Bennett, J., dissenting). To be sure, the states’

“historic police powers include ‘[t]he power to regulate

wages and employment conditions.’” App.26. But the

terms of work programs in detention facilities are far

removed from any ordinary regulation of “wages and

employment conditions.” They instead reflect programmatic considerations having much more to do

with the management of a particular institution than

with employment relations.

Even more to the point, the idea that the states’

historical police power over wages would extend to the

uniquely and exclusively national area of immigration

—let alone the “employment conditions” of those in

federal custody—cannot be taken seriously. This case

involves an effort to dictate what federal detainees in

a federal detention center must be paid for participating in a federal work program. States do not have

any “historic” power to regulate inherently federal

relationships like those between GEO, ICE, and federal detainees. See Buckman Co. v. Plaintiffs’ Legal

Comm., 531 U.S. 341, 347-48 (2001). The fact that this

case involves immigration detainees is just one more

strike against the Ninth Circuit’s benighted effort to

invoke the presumption against preemption. It is the

federal government, not the states, that has “broad”

and “undoubted” power over immigration. Arizona,

567 U.S. at 394; see Hines v. Davidowitz, 312 U.S. 52,

62 (1941). The notion that the Ninth Circuit could

view the presumption against preemption as

applicable, and well-nigh outcome determinative, in

this distinctly federal context is a powerful argument

for this Court’s intervention.

Second, the Ninth Circuit fixated on the fact that

neither Congress nor GEO’s contract with ICE

“imposes [a] limit on the amount that may be paid to

a detained worker.” App.27-28. That is true only in

the most formal sense, because in the context of

government contracting, when Congress sets an

express limit on what can be reimbursed from

appropriated funds, that cap acts as a powerful

practical constraint. Moreover, while the absence of

an express federal prohibition on doing what state law

requires may rule out the most rigorous form of

impossibility preemption, it does not foreclose the

possibility that state law could frustrate federal law

by making mandatory what federal law makes

discretionary (and purposefully so). As the United

States explained in supporting GEO’s en banc

petition, Congress did not give states a role in deciding

what federal detainees who participate in the federal

work program must be paid. C.A.Dkt.157 at 7.

In fact, the radical difference between what

federal and state law require here erases any practical

distinction between impossibility and obstacle

preemption. There is no denying that Washington has

in fact rendered continued operation of the federal

voluntary work program impossible, as ICE had no

choice but to authorize GEO to stop offering it at the

NWIPC at all—because Washington rendered it costprohibitive by subjecting it to its own compensation

regime. That is proof positive that this is a context in

which federal contractors must be left free to “perform

[the federal] functions” they have been assigned

“without conforming to the police regulations of a

state.” Arizona v. California, 283 U.S. 423, 451 (1931).

II. The Question Presented Is Exceptionally

Important, And This Is An Excellent Vehicle

To Resolve It.

The question presented is exceptionally important, both to the operation of federal immigration

detention facilities (in which 80% of detainees are held

by private contractors) and to the performance of

federal functions by federal contractors more generally. Federal contractors need to know whether they

can rely on the Supremacy Clause protections that

shield the federal government when they perform

federal functions itself, or whether they at best receive

some ill-defined junior-varsity protection. And the

federal government needs to know whether it is

opening the door to state interference when it enlists

private contractors to perform federal functions that

they can perform with greater flexibility or expertise.

The answers to both questions should be clear, and

should not depend on whether they arise on the East

Coast or the West Coast.

The discord the Ninth Circuit’s decision creates is

particularly problematic in the immigration context.

Though federal immigration policy is supposed to “be

left entirely free from local interference,” Hines, 312

U.S. at 63, it understandably generates passionate

local concerns on both sides of the aisle depending on

varying priorities of federal officials. While Arizona

thought one administration was being too lax,

Washington

apparently

thought

the

administration was being too harsh. But the one

constant is that the federal government has agreed

across three consecutive administrations that

Washington’s effort “to interfere with federal

immigration enforcement” is especially “aggressive

and legally unjustified.” C.A.App.406.

And interfere, the state certainly has: “[F]or the

past three years, detainees at NWIPC have had no

ability to participate in … and receive the benefits

from the program only because Washington seeks to

hold federal contractors to an illegal minimum wage

standard.” App.54 (Bennett, J., dissenting). That

perverse outcome plainly undermines Congress’

judgment that the program should be available to all

detainees. In short, the decision below “chart[s] a

roadmap for states to circumvent the Supremacy

Clause and Congress’s authority” in a uniquely federal

area. App.49 (Bennett, J., dissenting).

As Judge Bumatay explained, the decision below

threatens to have much more “widespread”

consequences too, as it “sets a dangerous precedent”

that empowers states 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.”

App.74

(Bumatay, J., dissenting) (emphasis added). That

denial of needed protections to federal contractors

harms the federal government itself, which now has to

choose (at least in the Ninth Circuit) between the

efficiencies of contracting out and the deficiencies of

opening the door to state interference.

The

Supremacy Clause spares the federal government that

dilemma. This Court should not leave standing a

decision that allows the basic design of the

Constitution to be so easily evaded.

This is an excellent vehicle to resolve the

exceptionally important question presented. The case

was litigated to final judgment on a full record, and

the Supremacy Clause issues were pressed and passed

on below.

The arguments on both sides were

thoroughly aired by majority and dissenting opinions,

and the legal issues on which the Ninth Circuit has

parted ways with other circuits were dispositive.

Moreover, the Ninth Circuit declined the opportunity

to take this case en banc and bring its precedent into

line with the law of its sister circuits and this Court—

over the dissent of seven judges. Its view that federal

contractors occupy a materially different position than

the federal government even when they are

performing identical federal functions is therefore

thoroughly entrenched. This Court should grant

review and reverse before that outlier position can

wreak even more havoc than it already has.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition.

Respectfully submitted,

DOMINIC E. DRAYE

GREENBERG

TRAURIG LLP

2101 L Street NW

Washington, DC 20037

(202) 331-3100

drayed@gtlaw.com

PAUL D. CLEMENT

Counsel of Record

ERIN E. MURPHY

PHILIP HAMMERSLEY*

CLEMENT & MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

(202) 742-8900

paul.clement@clementmurphy.com

*Supervised by principals of the firm

who are members of the Virginia bar

Counsel for Petitioner

January 9, 2026

APPENDIX

TABLE OF APPENDICES

Appendix A

Opinion, United States Court of Appeals

for the Ninth Circuit, Nwauzor v. GEO

Grp., Inc., No. 21-36024 (Jan. 16, 2025) ..... App-1

Appendix B

Order, United States Court of Appeals for

the Ninth Circuit, Nwauzor v. GEO Grp.,

Inc., No. 21-36024 (Aug. 13, 2025) ............ App-61

Appendix C

Opinion, Supreme Court of Washington,

Nwauzor v. GEO Grp., Inc., No. 101786-3

(Dec. 21, 2023) ........................................... App-97

Appendix D

Order, United States District Court for

the Western District of Washington,

Washington v. GEO Grp., Inc., No. 17-cv5806 (Dec. 10, 2018) ................................ App-121

Appendix E

Order, United States District Court for

the Western District of Washington,

Washington v. GEO Grp., Inc., No. 17-cv5806 (Aug. 6, 2019) .................................. App-132

Appendix F

Civil Judgment, United States District

Court for the Western District of

Washington, Washington v. GEO Grp.,

Inc., No. 17-cv-5806 (Nov. 4, 2021) ......... App-150

Appendix G

Memorandum of Decision, United States

District Court for the Western District of

Washington, Washington v. GEO Grp.,

Inc., No. 17-cv-5806 (Dec. 8, 2021).......... App-152

Appendix H

Order, United States District Court for

the Western District of Washington,

Nwauzor v. GEO Grp., Inc., No. C17-5769

(Apr. 7, 2020) ........................................... App-170

Appendix I

Civil Judgment, United States District

Court for the Western District of

Washington, Nwauzor v. GEO Grp., Inc.,

No. C17-5769 (Nov. 2, 2021) ................... App-195

Appendix J

Relevant Constitutional and Statutory

Provisions................................................. App-197

U.S. Const. art. VI, cl. 2 ................... App-197

8 U.S.C. §1555 .................................. App-197

App-1

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________

Nos. 21-36024, 22-35026

________________

UGOCHUKWU GOODLUCK NWAUZOR; FERNANDO

AGUIRRE-URBINA, individually and on behalf of all

those similarly situated,

Plaintiffs-Appellees,

THE GEO GROUP, INC., a Florida corporation,

Defendant-Appellant.

________________

Nos. 21-36025, 22-35027

________________

STATE OF WASHINGTON,

Plaintiff-Appellee,

THE GEO GROUP, INC.,

Defendant-Appellant.

________________

Argued and Submitted: Oct. 2, 2022

Filed: Jan. 16, 2025

________________

Before: Mary H. Murguia, Chief Judge, and

William A. Fletcher and Mark J. Bennett,

Circuit Judges.

________________

App-2

________________

OPINION

________________

W. FLETCHER, Circuit Judge:

The GEO Group (“GEO”) is a publicly traded

private corporation that operates detention and prison

facilities. Since 2005, GEO has operated the

Northwest Immigration and Customs Enforcement

Processing Center (“NWIPC”), an immigration

detention center in Tacoma, Washington. GEO

operates the NWIPC under contract with United

States Immigration and Customs Enforcement

(“ICE”), the federal agency tasked with enforcement of

immigration laws.

During the period relevant to this appeal, GEO

had a voluntary work program at the NWIPC. Every

day, hundreds of civil detainees at the NWIPC worked

for GEO, performing tasks essential to the operation

of the facility. GEO usually paid these workers $1 per

day, the minimum compensation mandated by ICE.

Without objection from ICE, GEO occasionally paid

them up to $5 per day when necessary to attract

sufficient workers. Because of the labor provided to

GEO by the detained workers employed under this

program, GEO operated its facility with just a handful

of full-time staff hired from the local area, thereby

saving millions of dollars that it would otherwise have

spent on payroll.

In 2017, a class of detainees and Washington

State each sued GEO in federal court for violations of

Washington’s Minimum Wage Act (“MWA”). The

district court consolidated the actions. A jury awarded

App-3

$17,287,063.05 in back pay damages to the detainee

class. After a bench trial, the court awarded

$5,950,340.00 in unjust enrichment to Washington

State and enjoined GEO from employing detainees

without paying Washington’s minimum wage.

GEO appealed to this court. After hearing oral

argument, we certified three questions to the

Washington Supreme Court. Nwauzor v. GEO Group,

Inc. (“Nwauzor”), 62 F.4th 509 (9th Cir. 2023). We

have now received the answers to those questions. We

affirm the judgment of the district court.

Background

The NWIPC has a maximum capacity of 1,575

detainees. Detainees at the NWIPC are awaiting

administrative review of their immigration status.

They are civil detainees. They are not in criminal

proceedings. Some detainees at the NWIPC lack legal

status in the United States. Others are lawful

permanent residents with work authorization.

Detainees are held until they are either deported

because they have no legal status or released into the

United States because they have a legal right to be

here.

The current ten-year contract between GEO and

ICE began in 2015 and awards GEO a minimum of

$700 million over ten years. Between 2010 and 2018,

GEO’s gross profit from managing the NWIPC ranged

between $18.6 million and $23.5 million per year, with

general net profit margins of 16 to 19 percent.

GEO’s contract with ICE requires GEO to comply

with “all applicable federal, state, and local laws and

standards,” including “labor laws and codes.”

Critically for purposes of the case before us, the

App-4

contract does not exclude state minimum wage laws

from the definition of state “labor laws and codes.”

Further, and also critically, the contract provides that

if “a conflict exist[s] between [federal and local]

standards, the most stringent standard shall apply.”

Finally, the contract provides, “Subject to existing law,

regulations and/or other provisions of this contract,

illegal or other undocumented aliens will not be

employed by the Contractor, or with this contract.”

(Emphasis added.) This provision does not exclude

state labor laws and codes from its definition of

“existing law.” Nor does it negate the “other

provision[] of this contract” that allows GEO to offer

paid employment to undocumented noncitizen

detainees at the NWIPC.

GEO’s contract also requires GEO to comply with

ICE’s

Performance-Based

National

Detention

Standards (“PBNDS”). Section 5.8 of the PBNDS

requires private contractors operating detention

facilities to offer a Voluntary Work Program (“VWP”).

Section 5.8 states that the purpose of the VWP is to

provide detainees “opportunities to work and earn

money while confined, subject to the number of work

opportunities available and within the constraints of

the safety, security and good order of the facility.”

Detainees who choose to participate in the VWP are

not permitted to work more than 8 hours per day and

40 hours per week. Section 5.8 requires contractors to

ensure that “working conditions . . . comply with all

applicable federal, state and local work safety laws

and regulations.” Section 5.8 also requires contractors

to compensate detainees at a rate of “at least $1.00

(USD) per day” (emphasis added).

App-5

Nothing in GEO’s contract with ICE or in the

PBNDS provides that GEO may not compensate civil

detainees at rates higher than $1.00 per day. As

described in greater detail below, GEO has routinely

paid detainees up to $5 per day when necessary to

attract sufficient workers. GEO has done so without

any objection from ICE.

ICE played no role in the development or

management of the VWP at the NWIPC. GEO created

job roles and descriptions, set work schedules,

provided training, supervised detained workers, and

managed payroll. Detained workers’ responsibilities

included meal preparation and kitchen sanitation,

janitorial work, building repairs, waste management,

and laundry. GEO started the VWP when it first

began to operate the NWIPC in 2005. In the years

since then, the number of daily participants in the

VWP has ranged from 200 to 470 detainees.

GEO’s contract with ICE requires it to keep the

NWIPC clean and free of pests, dispose of waste

appropriately, provide clean linens and blankets, and

serve detainees three nutritious meals daily. During

the period relevant to this case, GEO relied heavily on

the labor of the detained workers it employed to fulfill

its contractual duties. In the kitchen, GEO employed

thirteen full-time outside employees and used nearly

one hundred detainees each day to prepare meals,

cook and serve food, and wash dishes. Without the

help of detainees, the kitchen staff would have been

“absolutely” unable to meet demand. In the laundry

room, one full-time outside employee typically

supervised twelve to fifteen detainees processing

industrial loads of laundry for the entire facility seven

App-6

days a week. Detainees cleaned the majority of the

facility’s secured common areas, including the

kitchen, laundry room, communal bathrooms and

showers, and recreational areas. GEO employed three

outside employees as full-time janitors to clean nonsecured areas to which detainees were not permitted

access. GEO estimated that if the VWP at the NWIPC

ended, it would have to hire approximately 85

additional full-time outside employees.

GEO usually paid its employed detained workers

$1 per day. GEO sometimes increased their pay up to

$5 per day. These temporary increases incentivized

detainees to take undesirable shifts or to work

additional shifts when program participation was low,

such as during hunger strikes or outbreaks of disease.

GEO always resumed paying detainees $1 per day as

soon as practicable. GEO never paid its employed

detainees Washington’s minimum wage. Despite the

low pay and working conditions, detainees

participated in the VWP because of the situation in

which they had been placed. One detainee testified in

his deposition: “I need the money desperately. I have

no choice.”

In 2017, a class of detained workers at the NWIPC

and Washington State brought separate actions

against GEO in federal district court. Both suits

claimed that GEO violated Washington’s MWA. The

court consolidated the actions and held two trials. A

jury found that GEO violated the MWA and awarded

$17,287,063.05 in back pay damages to the detainee

class. After a bench trial, the district court awarded

$5,950,340.00 in unjust enrichment to the State. The

court enjoined GEO from continuing operation of the

App-7

VWP without paying Washington’s minimum wage to

the detainees it employed under the VWP. In

response, rather than pay Washington’s minimum

wage to the detained workers, GEO, with the approval

of ICE, suspended the VWP at the NWIPC during the

pendency of this litigation.

GEO appealed to this Court. After hearing oral

argument, we certified three questions of state law to

the Washington Supreme Court: (1) whether detained

workers at the NWIPC, a private detention center, are

“employees” within the meaning of the MWA; (2)

whether RCW 49.41.010(3) (k), the MWA’s

government-institutions exemption from MWA

coverage, applies to work performed by detainees

confined in a private detention facility operated under

a contract with the State; and (3) whether the

damages award to the class forecloses equitable relief

to the State in the form of an unjust enrichment

award. Nwauzor, 62 F.4th at 516-17.

The Washington Supreme Court answered all

three questions. Nwauzor v. The Geo Group., Inc.

(Nwauzor II), 540 P.3d 93 (Wash. 2023). It answered

“yes” to the first question, concluding that the

detainees employed by GEO in its VWP program were

employees within the meaning of the MWA, and that

the MWA requires GEO to pay Washington’s

minimum wage to those detainees. It answered “no” to

the second question, concluding that the MWA

government institutions exception “does not apply to

detained workers in private detention facilities

regardless of whether the private entity that owns and

operates the facility contracts with the state or federal

government.” Id. at 99. It answered “no” to the third

App-8

question, concluding that GEO may be held liable to

the State for unjust enrichment when detainees

employed in the VWP program are paid less than

Washington’s minimum wage.

In its appeal to us, GEO presented five questions.

Two are no longer relevant in light of the responses of

the Washington Supreme Court. The three remaining

questions are: (1) whether Washington’s MWA

violates the doctrine of intergovernmental immunity;

(2) whether the MWA is preempted by federal law; and

(3) whether the MWA violates GEO’s derivative

sovereign immunity. These are questions of law that

we review de novo. Hickcox-Huffman v. U.S. Airways,

Inc., 855 F.3d 1057, 1060 (9th Cir. 2017); In re

Hanford Nuclear Rsrv. Litig., 534 F.3d 986, 1000 (9th

Cir. 2008). We conclude that the district court

answered all those questions correctly in granting

judgment to the detainees and the State. Our

dissenting colleague contends that we (and the district

court) have answered questions (1) and (2) incorrectly.

We address the three questions in turn.

II. Discussion

A. Intergovernmental Immunity

“The Constitution’s Supremacy Clause generally

immunizes the Federal Government from state laws

that [1] directly regulate or [2] discriminate against

it.” United States v. Washington, 596 U.S. 832, 835

(2022) (bracketed numbers added); see also North

Dakota v. United States, 495 U.S. 423, 435 (1990)

(plurality opinion) (explaining that states shall not

“regulat[e] the United States directly or discriminat[e]

against the Federal Government or those with whom

it deals,” including private contractors). For purposes

App-9

of intergovernmental immunity, federal contractors

are not equivalent to the federal government. Thus,

“states may impose some regulations on federal

contractors that they would not be able to impose on

the federal government itself.” Geo Grp., Inc. v.

Newsom, 50 F.4th 745, 760 n.10 (9th Cir. 2022) (en

banc).

Case law distinguishes between the two kinds of

intergovernmental immunity. An example of the first

kind of intergovernmental immunity—immunity from

direct regulation—is Boeing Co. v. Movassaghi, 768

F.3d 832 (9th Cir. 2014), in which a California statute

authorized the State to “‘compel a responsible

party . . . to take or pay for appropriate removal or

remedial action necessary to protect the public health

and safety and the environment at the Santa Susana

Field Laboratory site.’” Id. at 839 (quoting Cal. Health

& Safety Code § 25359.20(a)). There was extensive

radioactive contamination at the Santa Susana site.

All of the contamination either was the result of

federal activity or was indistinguishable from the

result of such activity. The federal government

“accepted responsibility for the clean up of radioactive

contamination” at the site and “actively conduct[ed]

the cleanup through its cleanup contractor.” Id.

California law imposed higher cleanup standards on

the federal government than federal law or policy

required. We held that California law improperly

imposed direct regulation on the federal government

because a state law cannot “regulate what [a] federal

contractor[] ha[s] to do or how they d[o] it pursuant to

their contracts.” Id. In a later case, we characterized

the California law as “impermissibly interfer[ing] with

federal functions by overriding federal contracting

App-10

decisions” as opposed to “merely increas[ing] the

federal government’s costs.” Newsom, 50 F.4th at 760.

An example of the second kind of immunity—

immunity from discriminatory regulation—is United

States v. Washington, 596 U.S. 832 (2022), in which a

Washington statute provided enhanced workers’

compensation benefits to employees of federal

contractors performing cleanup work at the Hanford

nuclear site in eastern Washington. Washington law

allowed workers employed by federal contractors at

Hanford to establish eligibility for benefits more easily

than other workers covered by Washington’s workers’

compensation law. Because it mandated greater

eligibility for benefits for federal contractors’ Hanford

workers, the law increased the workers’ compensation

costs borne by the federal government compared to the

costs borne by other employers. Id. at 835-36. The

Supreme Court held that the law providing enhanced

benefits for the Hanford workers was improperly

discriminatory because it “singl[ed] out the Federal

Government for unfavorable treatment” compared to

similarly situated state and private employers. Id. at

839.

We address the two kinds of immunity in turn.

Immunity from Direct Regulation

“When a state regulation of a contractor would

control federal operations, enforcement of the

substance of the regulation against the contractors

would have the same effect as direct enforcement

against the Government.” Newsom, 50 F.4th at 760

(citation and internal quotation marks omitted).

However, “[t]he scope of a federal contractor’s

protection from state law under the Supremacy Clause

App-11

is substantially narrower than that of a federal

employee or other federal instrumentality.” Id. at 755.

“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.” Id. at 750.

GEO is a private for-profit employer that operates

the NWIPC for its shareholders’ economic gain. The

MWA applies equally to all private employers,

including GEO. In the case before us, the MWA

neither controls federal operations nor dictates the

terms of the contract between ICE and GEO. It

requires no action by federal officials. Nor does it

determine the work that detainees may perform.

In evaluating a federal contractor’s claim of

intergovernmental immunity, “courts distinguish

regulations that merely increase the federal

government’s costs from those that would control its

operations.” Id. at 755; see also Boeing, 768 F.3d at

839. Appearing as amicus, the government argues

that direct-regulation intergovernmental immunity

applies here because “[t]here can 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.” (Emphasis added.) The problem with the

government’s argument is obvious on its face: The

government does not “operate[] the detention facility.”

Nor does it “implement[] the Voluntary Work Program

directly.” Instead, GEO, a private for-profit company,

performs those functions.

App-12

In its contract with GEO, the federal government

has chosen to control only some aspects of GEO’s

operations at the NWIPC. The government made a

deliberate choice to dictate to GEO the minimum rate

at which it must pay its detained workers under the

VWP. But, critically, it also made a deliberate choice

not to dictate to GEO a maximum rate at which it may

pay those workers. GEO has usually paid the

minimum rate, but in recognition of the fact that its

contract with ICE does not cap the wages it may pay

detainees it has sometimes paid five times that rate.

The government has never objected to GEO so doing.

More to the point, the government has not claimed in

this litigation that GEO violated its contract—or,

indeed, any federal law—in so doing.

Washington’s MWA is analogous to state laws

that impose requirements on federal contractors that

the Supreme Court have upheld as merely increasing

the federal government’s costs. “Absent federal law to

the contrary, the Supremacy Clause . . . leaves

considerable room for states to enforce their generally

applicable laws against federal contractors.” Newsom,

50 F.4th at 755. As we have explained, a “state law is

[not] unconstitutional just because it indirectly

increases costs for the Federal Government, so long as

the law imposes those costs in a neutral,

nondiscriminatory way.” Id. (quoting Washington, 568

U.S. at 839) (alteration in original). The Washington

Supreme Court has made clear that the MWA imposes

minimum wage standards on private employers in a

neutral, nondiscriminatory way, irrespective of

whether the private employer is contracting with the

federal or state government. See Nwauzor II, 540 P.3d

at 99.

App-13

There is a long-standing line of cases holding that

states may impose non-discriminatory taxes on

federal contractors even though those taxes may

increase the costs of the government. See, e.g., South

Carolina v. Baker, 485 U.S. 505, 523 (1988); United

States v. New Mexico, 455 U.S. 720 (1982). But the

principle is not limited to tax cases. See, e.g., Penn

Dairies v. Milk Control Comm’n, 318 U.S. 261 (1943)

(upholding state law imposing price control on federal

suppliers even though this may result in increased

costs to the government); James Stewart & Co. v.

Sadrakula, 309 U.S. 94, 104 (1940) (upholding state

law requiring federal contractor to use planking as

walkways even though it “may slightly increase the

cost of construction to the government”).

In Newsom, we struck down a California law that

categorically forbade the federal government to

operate private detention facilities in California. We

held that by categorically forbidding the federal

government to use private contractors, the law

impermissibly sought to “control its operations,” as

opposed to merely increasing its costs. Newsom, 50

F.4th at 755. The case before us is a far cry from

Newsom. Washington’s MWA does not forbid the

federal government to use private contractors to

confine civil detainees. Nor does it impose

requirements on private contractors that conflict with

any requirement imposed by the federal government.

It merely requires private contractors to pay civil

detainees Washington’s minimum wage for work

these detainees perform for the benefit of the

contractor.

App-14

The MWA is not comparable to state licensing

requirements that conflict with the federal

government’s requirements and thereby interfere

with the government’s authority to select its

contractors. See, e.g., Leslie Miller, Inc. v. Arkansas,

352 U.S. 187, 188 (1956); Gartrell Const. Inc. v. Aubry,

940 F.2d 437, 438-39 (1991); Taylor v. United States,

821 F.2d 1428, 1431-32 (9th Cir. 1987). Nor is it

comparable to a law requiring state approval of federal

rates for a common carrier transporting federal

property. See Pub. Util. Comm’n of State of Cal. v.

United States, 355 U.S. 534 (1958). Those

impermissible licensing and permitting regimes

involved direct control by the state over federal

government operations. They directly regulated the

federal government by “preventing [the federal

government] from hiring the personnel of its choice” or

by dictating the terms of a federal contract. Newsom,

50 F.4th at 757; see also Gartrell, 940 F.2d at 438-39.

Washington’s MWA does not interfere with or

dictate federal decisions in the manner of the laws at

issue in the cases just cited. There is nothing—either

in federal law or in GEO’s contract with the federal

government—that prevents GEO from paying

Washington’s minimum wage to its civil detainees

who perform work for the benefit of GEO. Indeed, as

we noted above, GEO’s contract with ICE explicitly

requires it to comply with “state labor laws and codes.”

The contract does not exclude minimum wage laws

from its definition of state labor laws and codes.

Further, a former GEO detention officer testified at

trial that GEO was free to add fully paid positions to

its staff at the NWIPC without a contract

modification, and that GEO often did so with the

App-15

understanding that it would not be reimbursed by the

federal government for the cost of those additional

positions.

If GEO were able to renegotiate a higher rate with

the federal government so as to retain its current level

of profit while also complying with the MWA, this

would indirectly increase costs to the federal

government. At this time, there has been no

renegotiation, and we are unable to predict the

outcome of such renegotiation. However, we note that

financial data in the record suggest that even after

complying with Washington’s MWA GEO could still

profit substantially from operating the NWIPC under

its current contract. At trial, the class of detained

employees won a verdict of $17,287,063.05 for failure

to pay Washington’s minimum wage for work from

2014 through 2021. That figure divided by seven years

equals just under $2,500,000 per year. GEO’s gross

profit from managing the NWIPC between 2010 and

2018 ranged between $18.6 million and $23.5 million

per year. Subtracting $2.5 million from GEO’s profits

during those years would allow GEO—even operating

under its current contract—to retain a profit margin

of roughly $16 to $21 million per year while complying

with the MWA.

In sum, we agree with the district court’s

conclusion that “[a]pplication of the [MWA] does not

mandate the way in which GEO runs the [VWP]” or

“replace

add

the

contractual

requirements . . . GEO [must] fulfill in running the

[P]rogram.” That is, a requirement that GEO pay its

detained workers in compliance with Washington’s

MWA does not directly regulate the federal

App-16

government. Even if the government does ultimately

pay more under future contracts with GEO as a result

of GEO’s compliance with the MWA, such indirect

effect would not violate the principle of

intergovernmental immunity.

Immunity from Discriminatory Regulation

A state law or regulation discriminates against

the federal government if it treats comparable classes

of federal and state employees differently,

advantaging the state employees. Dawson v. Steager,

586 U.S. 171, 175-76 (2019). GEO and the federal

government point to Wash. Rev. Code § 49.46.010(3)

(k), which exempts “resident, inmate, or patient”

employees of Washington government institutions

from coverage under the MWA. A covered “employee”

under the MWA “includes any individual employed by

an employer but shall not include: . . . [a]ny resident,

inmate, or patient of a state, county, or municipal

correctional, detention, treatment, or rehabilitative

institution.” Id. (emphasis added). That is, the MWA

does not apply to residents, inmates, or patients of

institutions

operated

Washington

State

governmental entities. The statute contains no

comparable exemption for residents, inmates or

patients in federally operated institutions.

GEO and the government argue that

Washington’s MWA discriminates because it treats

the federal government differently from the state

government. If the federal government operated the

NWIPC directly, and if Washington sought to apply its

MWA to employees of the federal government working

in the NWIPC, this would be a good argument. But

that hypothetical case is not the case before us. In the

App-17

case before us, the federal government does not

operate the NWIPC. Nor does it employ civil detainees

at the NWIPC. GEO does those things. Thus, the

question presented is not whether the MWA treats

differently facilities operated by the federal and state

governments. Rather, the question is whether the

MWA treats private facilities operated under contract

with the federal government differently from private

facilities operated under contract with the state

government.

The Washington Supreme Court’s response to our

second certified question provides the answer. The

Court wrote that the exemption from coverage under

the MWA does not apply to detained workers in

private facilities operating under contract with either

the state or federal government. See Nwauzor II, 540

P.3d at 99. Specifically, the Court wrote that the

exemption “does not apply to detained workers in

private detention facilities regardless of whether the

private entity that owns and operates the facility

contracts with the state or federal government.” Id.

The Court emphasized that the critical distinction

under the statute is between publicly and privately

run institutions, not between federal and state

institutions. According to the Washington Supreme

Court, privately run detention facilities—whether

operated under contract with the federal or the state

government—are simply not included in the

exemption from the MWA. Both are subject to the

MWA. That is, privately run detention facilities are

treated equally, regardless of “whether the institution

is operated pursuant to a contract with the federal or

state government.” Id. at 100.

App-18

Our dissenting colleague asks a different question

from the question presented by this case. He writes,

“This case involves a simple question: whether

Washington can force a federal contractor operating

an immigration detention facility to pay a higher

minimum wage than its contract with the federal

government requires when Washington does not

require the same of detention facilities it operates.”

Dissent at 36. Our colleague asks the wrong question.

He does not ask whether Washington’s MWA treats

equally apples and apples. That is, he does not ask

whether the MWA treats equally private employers

who have contracted with the state and private

employers who have contracted with the federal

government. Instead, our colleague asks whether the

MWA treats equally apples and oranges. That is, he

asks whether the MWA treats equally state employers,

on the one hand, and private employers who have

contracted with the federal government, on the other.

Because our colleague asks the wrong question, he

gets the wrong answer.

Our colleague relies on the Supreme Court’s

decision in Dawson to support his conclusion. But

Dawson supports our holding rather than his dissent.

Plaintiff Dawson was a retired U.S. Marshal. His

home state of West Virginia taxed as income the

retirement benefits of all retired federal employees,

but it did not tax as income the benefits of certain

retired state law enforcement employees. Dawson

contended that West Virginia should treat him in the

same manner as it treated the retired state law

enforcement employees. The Supreme Court agreed,

holding that West Virginia was required to give the

same tax benefit to Dawson as it gave to the retired

App-19

state law enforcement employees because “there

aren’t any ‘significant differences’ between Mr.

Dawson’s former job responsibilities and those of the

tax-exempt state law enforcement retirees.” Dawson,

586 U.S. at 175.

Dawson allows the application of the MWA to

GEO’s VWP. The question in Dawson was whether

retired federal law enforcement employees were

improperly discriminated against as compared to

retired state law enforcement employees. Dawson’s

holding requires a comparison between the employees

of the federal and state governments to ensure that

similarly situated federal and state employees are

treated equally. Dawson does not require, and should

not be expanded to require, that employees of the

government and employees of private institutions be

treated equally.

The Washington Supreme Court made clear, in its

answer to our second certified question, that the MWA

treats equally the employees of state and federal

government institutions. The exception to the MWA

applies to both. But that exception does not apply to

employees of private institutions operated under

contract with either the state or the federal

government. That is, the exception “does not apply to

detained workers in private detention facilities

regardless of whether the private entity that owns and

operates the facility contracts with the state or federal

government.” Nwauzor II, 540 P.3d at 99. The

government institutions exception “applies only to

workers detained in a government institution.” Id.

(emphasis added). The MWA applies equally to all

App-20

private institutions regardless of whether they are

contracting with the state or federal government. Id.

We have long recognized, in many contexts, that

there are “significant differences” between federal and

state government entities, on the one hand, and

private companies that contract with those

governmental entities, on the other. There are many

examples.

Federal

government

entities

are

presumptively entitled to sovereign immunity, but

private companies that contract with the government

do not have sovereign immunity unless their conduct

was dictated and controlled by the federal

government. See Campbell-Ewald Co. v. Gomez, 577

U.S. 153 (2016). Federal entities have a presumptive

intergovernmental tax immunity, but private

contractors do not share that immunity unless their

conduct is “so closely connected to the Government

that the two cannot realistically be viewed as separate

entities, at least insofar as the activity being taxed is

concerned.” New Mexico, 455 U.S. at 735. For purposes

of the Fourteenth Amendment’s state action

requirement, acts performed by “private contractors

do not become acts of the [state] government by reason

of their significant or even total engagement in

performing public contracts.” Rendell-Baker v. Kohn,

457 U.S. 830, 841 (1982). Federal officers can use the

federal-officer removal statute, but employees of a

company contracting with the federal government

cannot use the statute unless they demonstrate that

they are “common-law agents” of the government.

DeFiore v. SOC LLC, 85 F.4th 546, 556 (9th Cir. 2023).

In the context of qualified immunity, the Supreme

Court has emphasized the difference between

“[g]overnment-employed prison guards” and “prison

App-21

guards who are employees of a private prison

management firm,” holding that only governmentemployed guards are entitled to qualified immunity.

Richardson v. McKnight, 521 U.S. 399, 405, 401

(1997).

According to our dissenting colleague, Dawson

“suggests” that we should compare state entities to

private entities that contract with the federal

government. Dissent at 42. The dissent characterizes

Dawson as suggesting that “the relevant question isn’t

whether [the NWIPC is] similarly situated to [other

private employers covered by the MWA]; the relevant

question is whether [it is] similarly situated to those

who [are exempt from the MWA].” Id. (quoting

Dawson, 586 U.S. at 178; bracketed language supplied

by the dissent). The dissent goes on:

The relevant comparison in Dawson was

between state employees, who received the

benefit, and federal employees, who did not.

Dawson, 586 U.S. at 178. Applied to the

MWA, Dawson requires equal treatment

between Washington state facilities, which

receive the benefit, and the NWIPC, a federal

facility, which does not.

Id. at 42 n.5 (emphasis added). In both of these

passages, the dissent insists on comparing the

NWIPC, a privately operated facility, to facilities

operated by Washington State. In so insisting, the

dissent refuses to acknowledge the obvious. Contrary

to what the dissent writes, the NWIPC is not a “federal

facility,” comparable to “Washington state facilities.”

Rather, it is a private facility, operated under contract

with the federal government.

App-22

Our dissenting colleague’s interpretation of

Dawson

would

improperly

expand

the

intergovernmental

immunity

doctrine.

Our

colleague’s interpretation would provide to private,

for-profit entities the same intergovernmental

immunity protection enjoyed by the federal

government when those entities are merely

contracting with the federal government. This reading

of Dawson is inconsistent with Geo Group, Inc. v.

Newsom, where we recently explained that “states

may impose regulations on federal contractors that

they would not be able to impose on the federal

government itself.” 50 F.4th at 760 n.10 (en banc)

(citing Osborn v. Bank of the United States, 22 U.S. (9

Wheat.) 738, 867 (1824); United States v. New Mexico,

455 U.S. 720, 735 n.11 (1982)).

Our colleague also relies on United States v.

California, 921 F.3d 865 (9th Cir. 2019). Dissent at 44.

The case before us is poles apart from that case. In

United States v. California, the federal government

challenged a California statute that required state

review of “facilities in which noncitizens are being

housed or detained for purposes of civil immigration

proceedings in California.” Id. at 882 (quoting Cal.

Gov’t Code § 12532(a)). The statute specifically

required review by state officials of “the ‘standard of

care and due process provided to’ detainees, and ‘the

circumstances around their apprehension and

transfer to the facility.’” Id. at 882-83 (quoting Cal.

Gov’t Code § 12532(b) (1)). We wrote, “These

additional requirements burden federal operations,

and only federal operations.” Id. at 883. That is, these

requirements did not apply to state facilities that

housed or detained noncitizens; they applied only to

App-23

federal facilities that performed those functions.

Because of the differential treatment, we held that the

California statute violated the doctrine of

intergovernmental immunity. In contrast to the

statute at issue in United States v. California,

Washington’s MWA does not apply differently to

private facilities employing civil detainees depending

on whether the facility is operating pursuant to a

contract with the state or a contract with the federal

government. Instead, the MWA applies equally to

such facilities.

Our dissenting colleague reads an excerpt from

Washington Department of Labor and Industries

guidance as suggesting that a privately operated

detention facility contracting with Washington is

exempt from the MWA. Dissent at 40-41. The

Washington Supreme Court, however, relied on

precisely this guidance to conclude that such a

privately operated detention facility is not exempt

from the MWA. See Nwauzor II, 540 P.3d at 99-100.

The guidance specifies that “residents, inmates, or

patients of a state, county or municipal correctional

detention, treatment or rehabilitative institution

assigned by facility officials to work on facility

premises for a private corporation at rates established

and paid for by public funds are not employees of the

private corporation and would not be subject to the

MWA.” Id. (quoting Wash. State Dep’t of Lab. & Indus.

Policy No. ES.A.1, § 5(k), Minimum Wage

Applicability (Dec. 29, 2020) (emphasis added by the

Washington Supreme Court)). In its answer to our

certified question, the Washington Supreme Court

emphasized that the guidance used the words

“assigned by facility officials to work on facility

App-24

premises.” Relying on this language, the Court

interpreted the guidance as applying only to MWA

exemptions of government-operated facilities. See id.

Thus, according to the Court, the guidance indicates

that privately operated facilities are not exempt from

the MWA.

The Washington Supreme Court was explicit in

saying that the MWA treats equally employees of

private facilities operated pursuant to contracts with

the state and the federal governments. According to

that Court, both sets of employees are covered by the

MWA. It is true that at this time there is no such

private facility operating pursuant to a contract with

the State. But the Court stated clearly, in answer to

our second certified question, that Washington’s MWA

would apply to a private detention facility operating

under contract with the State. We have no reason to

disbelieve the Washington Supreme Court when it

writes that Washington’s MWA would apply equally

to such a facility.

Our dissenting colleague asks us to disregard the

considered opinion of the Washington Supreme Court.

Our colleague states accurately that at this time there

is no private detention facility operating under

contract with the State. From that undisputed fact, he

argues that we should ignore the opinion of the

Washington Supreme Court on a question of

Washington law. We disagree. When we have asked a

question to that Court, and have received its answer,

we are not free to disregard that answer. To disregard

the considered opinion of the Washington Supreme

Court on a question of law of that State, when we have

asked for that very opinion, is not only disrespectful to

App-25

that Court but is also contrary to the principles of

federalism upon which our Constitution is based.

Finally, during the pendency of this appeal, the

parties brought to our attention United States v. King

County, No. 23-35362, ___F.4th___, 2024 WL 4918128

(9th Cir. Nov. 29, 2024), in which we held that an

executive order of King County, Washington, barring

private servicing of charter flights used for

deportations at a local airport violated the

intergovernmental immunity doctrine. Id. at *9-11.

We held that the executive order effectively banned

the federal government from using privately

contracted flights for deportations at the local airport

and discriminated directly against the United States

by singling out the federal government and its

contractors for unfavorable treatment. Id. at *10.

King County is consistent with our holding today.

As explained above, the MWA neither improperly

regulates federal operations nor discriminates against

the federal government and its contractors. The King

County executive order targeted specific kinds of

flights, effectively preventing the federal government

from using private contractors for deportations at the

local airport (improper direct regulation) and applied

only to private companies contracting with the federal

government (improper discrimination). Id. at *9-11.

The executive order was comparable to the laws struck

down in Newsom v. Geo Group and United States v.

California rather than to the MWA. In contrast to the

laws in those cases, the MWA is a generally applicable

statute that for over sixty years has required private

institutions in Washington State to pay their workers

minimum wage. See Nwauzor II, 540 P.3d at 99.

App-26

B. Preemption

Federal law preempts state law when a party

cannot comply with both federal and state law, or

when state law poses an “obstacle to the

accomplishment and execution of the full purposes

and objectives of Congress.” Nat’l Fed’n of the Blind v.

United Airlines Inc., 813 F.3d 718, 724 (9th Cir. 2016)

(citation omitted). There is a presumption against

preemption “when a state regulates in an area of

historic state power.” Knox v. Brnovich, 907 F.3d 1167,

1174 (9th Cir. 2018) (citation omitted). As relevant

here, the States’ historic police powers include “[t]he

power to regulate wages and employment conditions.”

RUI One Corp. v. City of Berkeley, 371 F.3d 1137, 1150

(9th Cir. 2004). States “possess broad authority under

their police powers to regulate the employment

relationship to protect workers within the State.” Id.

(citation omitted).

Once triggered, the presumption against

preemption applies “even if the law ‘touch[es] on’ an

area of significant federal presence.” Knox, 907 F.3d at

1174. The presumption applies to state laws that

affect areas of exclusive federal regulation, such as

immigration, even if they have “incidental effects in

an area of federal interest.” DeCanas v. Bica, 424 U.S.

351, 355 (1976) (“[T]he Court has never held that

every state enactment which in any way deals with

[noncitizens] is a regulation of immigration and thus

per se preempted by this constitutional power.”);

Puente Ariz. v. Arpaio, 821 F.3d 1098, 1104 (9th Cir.

2016) (“[W]hile the [challenged] laws certainly have

effects in the area of immigration, the text of the laws

App-27

regulate for the health and safety of the people of

Arizona.”).

The MWA falls squarely within the states’ historic

police powers to establish and require payment of a

minimum wage. The fact that the MWA applies to civil

detainees working in an immigration detention center

operated by a private for-profit company does not

transform it into a law that has more than an

incidental effect on immigration. Knox, 907 F.3d at

1177; DeCanas, 424 U.S. at 355; Puente Ariz., 821 F.3d

at 1104. We therefore apply the presumption against

preemption.

overcome

the

presumption

against

preemption, the challenging party must show a “clear

and manifest purpose of Congress” to preempt state

law. Arizona v. United States, 567 U.S. 387, 400 (2012)

(internal citations omitted). GEO and the government

attempt to show a “clear and manifest purpose” by

arguing that in two statutes Congress showed its

intent to preempt the application of the MWA to civil

detainees held in private for-profit detention centers.

Neither argument is persuasive.

First, GEO and the government cite a statute

enacted

1950

providing

that

“[a]ppropriations . . . shall

available

for . . . 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. This statute empowers Congress to

appropriate funds to ICE to pay allowances to

detainees who perform work while detained. The

statute imposes no limit on the amount that may be

App-28

appropriated. Nor does it impose any limit on the

amount that may be paid to a detained worker.

Finally, in enacting the statute, Congress could not

have had in mind payment of civil detainees held in

private facilities operated by for-profit companies

because privately run immigration detention centers

did not exist until the 1980s, thirty years after the

statute was enacted.

Second, GEO and the government cite a

congressional appropriations act from the late 1970s.

In that act, Congress appropriated funds to the

precursor agency to ICE “at a rate not in excess of $1

per day” for compensating detained workers.

Department of Justice Appropriations Act, 1979, Pub.

L. No. 95-431, 92 Stat. 1021 (1978). In the same act,

Congress authorized other uses for the appropriated

funds, including leasing aircraft, “tracking lost

persons,” hiring security guards, “attend[ing] firearms

matches,” and providing allowances to immigrants in

custody. The act is no longer in force. “As a general

rule of thumb, appropriations acts are in force during

the fiscal year of the appropriation and do not work a

permanent change in the substantive law.” Seattle

Audubon Soc’y v. Evans, 952 F.2d 297, 304 (9th Cir.

1991). Congress did not reenact this provision in a

subsequent bill, and the text of the appropriation

specified that it would lapse. See Department of

Justice Appropriations Act, 1979, Pub. L. No. 95-431,

92 Stat. 1021, 1021 (1978) (“An Act making

appropriations . . . for the fiscal year ending

September 30, 1979.”).

But even if the act were currently in force, it

would not help GEO. GEO contends in its brief that

App-29

the act forbids it to pay its detainees more than $1.00

per day. It writes, “[T]he maximum rate of payment

for ‘work performed’ by ‘aliens, while held in custody

under the immigration laws,’ is $1 per day.” GEO is

clearly incorrect. It is uncontested that GEO has paid

its civil detainees at up to five times the rate it is now

claiming is the maximum permitted rate, and that

ICE has never objected to its doing so. The government

explicitly disagrees with GEO on this point. The

government correctly concedes in its amicus brief that

the act, if still in force, would not forbid GEO from

paying more than $1.00 per day. The act merely

provided that the government would not reimburse

payments in excess of that amount.

Further, even if the act were currently in force, it

would appropriate funds to ICE only to pay civil

detainees held in government facilities. The act did

not and would not, if it were still in force, address

payment of civil detainees held by private, for-profit

contractors. Nothing indicates that Congress

intended, during the period the act was in force, much

less in perpetuity, to limit wages paid to such workers

and to preempt a state minimum wage requirement

applicable to private contractors that employ such

workers.

The federal government as amicus makes an

additional argument not made by GEO. The

government speculates that compelling private

contractors to pay state-mandated minimum wage to

detained workers will result in financial disparities

among detainees, and that such disparities could lead

to unrest in detention facilities. The government

further speculates that private contractors may scale

App-30

back or eliminate the VWP due to the increased

financial burdens associated with paying detained

workers the state-mandated minimum wage. The

government argues that these possible effects would

impermissibly interfere with the accomplishment of

Congress’s goal in authorizing the VWP. Whether or

not the government’s speculations will be borne out is,

on the record before us, unknowable. We are aware

that, with the permission of the government, GEO has

suspended the VWP at the NWIPC during the

pendency of this litigation. However, we see nothing

in this litigation-specific response to indicate what the

long-term consequences will be if GEO is required to

pay Washington’s MWA to its civil detainees held at

the NWIPC.

Our dissenting colleague disagrees with our

analysis. He contends that Washington’s MWA is

preempted because it poses an “‘obstacle to the

accomplishment and execution of the full purposes

and objectives of Congress.’” Dissent at 49-50 (quoting

Newsom, 50 F.4th at 758 (quoting United States v.

California, 921 F.3d at 879)). It is true that requiring

GEO to pay Washington’s minimum wage to its civil

detainees who perform work for GEO at the NWIPC

may result in the federal government paying more to

GEO, if and when its contract for the NWIPC is

renewed. That is, the rate paid under the new contract

may take into account the expense to GEO of paying

Washington’s minimum wage to its civil detainee

employees.

It is, of course, true for all federal contractors that

the federal government takes into account, when

setting contract rates, the expenses the contractor will

App-31

incur. If a federal contractor is required to pay state

minimum wage to its employees, the cost of the

contract to the government is likely to reflect that fact.

The parties have not cited a case—and we are aware

of none—holding that state minimum wage laws may

not apply to federal contractors.

However, our dissenting colleague contends that

the federal contractor in this case is different from

other federal contractors. He points out that

regulation of immigration is an important and

quintessential federal function, and contends that the

federal government should therefore be spared the

expense of entering into a contract when its contractor

would be required to comply with Washington’s

minimum wage law. We agree with our colleague that

regulation of immigration is an important and

quintessential federal function. But so are other

federal functions, such as, for example, designing and

building aircraft and ships for our national defense.

State minimum wage laws are routinely applied to

federal defense contractors. No one, including our

dissenting colleague, has ever suggested that the

application of a state minimum wage law to federal

defense contractors is an “obstacle to the

accomplishment and execution of the full purpose and

objectives of Congress.”

C. Derivative Sovereign Immunity

Derivative sovereign immunity protects a private

entity that has contracted with the federal

government, provided that the government acted

within its constitutional authority and that the

government

has

specifically

authorized

the

contractor’s actions at issue. Campbell-Ewald Co., 577

App-32

U.S. at 167; Boyle v. United Technologies Corp., 487

U.S. 500, 506 (1988); Yearsley v. W.A. Ross Const. Co.,

309 U.S. 18, 21 (1940).

We have characterized the government contractor

defense as “allow[ing] a contractor-defendant to

receive the benefits of sovereign immunity when a

contractor complies with the specifications of a federal

government contract.” In re Hanford Nuclear, 534

F.3d at 1000 (9th Cir. 2008) (citing Boyle, 487 U.S. at

511-12). A contractor whose challenged conduct is not

dictated by its contract with the government, but is

rather within the contractor’s discretion, is not

entitled to derivative sovereign immunity. Cabalce v.

Thomas E. Blanchard & Assocs., Inc., 797 F.3d 720,

732 (9th Cir. 2015). In Cabalce, we held that a private

company with a government contract to store

fireworks was not entitled to derivative sovereign

immunity where the record did not show that the

company “‘had no discretion’ in devising the

destruction plan for the fireworks” and it was

“undisputed that [the contractors] designed the

destruction plan without government control or

supervision.” Id. at 732 (quoting Hanford, 534 F.3d at

1001).

GEO’s argument that it is entitled to derivative

sovereign immunity fails on two grounds.

First, GEO’s contract with ICE does not forbid

GEO to comply with Washington’s MWA. Indeed, the

plain language of the contract requires quite the

opposite. As noted above, the contract requires GEO

to comply with “all applicable federal, state, and local

laws and standards,” including “labor laws and codes.”

It specifies that if “a conflict exist[s] between [federal

App-33

and local] standards, the most stringent standard

shall apply.” The plain meaning of state “labor laws

and codes” includes state minimum wage laws. Only

an explicit exclusion of minimum wage laws from the

definition of “labor laws and codes” would allow us to

conclude that minimum wage laws are not included.

There is no such exclusion in the contract. Finally, the

contract provides, “Subject to existing law, regulations

and/or other provisions of this contract, illegal or

other undocumented aliens will not be employed by

the Contractor, or with this contract.” (Emphasis

added.) This provision does not exclude state labor

laws and codes from its definition of “existing law.”

Nor does it negate the “other provision[] of this

contract” that allows GEO to offer paid employment to

undocumented noncitizen detainees at the NWIPC.

We therefore conclude that the plain language of the

contract requires GEO to pay its civil detainees

Washington’s minimum wage so long as the MWA is

“applicable.” In response to our certified question, the

Washington Supreme Court wrote that Washington’s

MWA is applicable to work performed by civil

detainees held by GEO at the NWIPC.

Second, even if the contract did not require GEO

to pay its detainees in accordance with Washington’s

MWA, there is nothing in the contract that would

forbid GEO to do so. The contract sets a minimum

compensation of $1 per day, but it does not forbid

payments in excess of that amount. GEO chose to

exceed that amount, without objection from the

government, by paying up to $5 per day whenever

necessary to persuade detainees to participate in the

VWP. GEO could equally well have chosen, consistent

App-34

with the contract, to exceed that amount by paying

workers Washington’s minimum wage.

CONCLUSION

We hold that the application of Washington’s

MWA to civil detainees held in GEO’s privately

operated federal detention center does not violate the

doctrine of intergovernmental immunity. Further, we

hold that Washington’s MWA is not preempted by

federal law. Finally, we hold that GEO does not have

derivative sovereign immunity under the government

contractor defense.

We affirm the judgment of the district court.

App-35

BENNETT, Circuit Judge, dissenting:

This case involves a simple question: whether

Washington can force a federal contractor operating

an immigration detention facility to pay a higher

minimum wage than its contract with the federal

government requires when Washington does not

require the same of detention facilities it operates. The

majority holds that Washington can do so. Because I

believe that Washington’s Minimum Wage Act (MWA)

violates the Supremacy Clause and is preempted by

federal immigration law, I respectfully dissent.

The MWA violates the Supremacy Clause

and is unconstitutional as applied to the

Northwest Immigration and Customs

Enforcement Processing Center.

On August 22, 2019, the United States filed a

statement of interest before the district court arguing

that “[b]asic constitutional principles prevent a State

from interfering with the federal government’s

activities in the way Washington is trying to do here.”

DOJ Statement of Interest at 1, Nwauzor v. GEO Grp.,

Inc., No. 17-cv-05769 (W.D. Wash. Aug. 20, 2019), ECF

No. 185. Nearly five years later, on February 21, 2024,

the United States filed an amicus brief before this

court maintaining its argument that “[a]pplication of

the [MWA] also[ 1] independently contravenes

intergovernmental immunity because it would make

federal detainees subject to provisions that do not

apply, and never have applied, to persons in state

1 As discussed below, the United States’s 2024 brief reiterates

its argument before the district court that the MWA is also

preempted. DOJ Amicus Br. at 12, ECF No. 114.

App-36

custody.” DOJ Amicus Br. at 2. I agree with the United

States that applying the MWA to The GEO Group, Inc.

(GEO) here is both unconstitutional and preempted.

The MWA prescribes a minimum wage that must

be paid to all “employees” in the State. Wash. Rev.

Code § 49.46.020. Now that wage is $16.28 per hour.

See id. § 49.46.020(2) (b). GEO contracted with

Immigration and Customs Enforcement (ICE) to

provide “detention management services” at the

Northwest ICE Processing Center (NWIPC) in

Tacoma, Washington. As part of that contract, GEO

agreed to abide by ICE’s Performance-Based National

Detention Standards (PBNDS). The PBNDS require

that GEO offer detainees the opportunity to

participate in the Voluntary Work Program (VWP).

Congress created the VWP to reduce the “negative

impact of confinement . . . through decreased idleness,

improved morale and fewer disciplinary incidents,”

while also allowing detainees to earn money.

Performance-Based National Detention Standards

§ 5.8, at 405 (ICE 2016). The VWP provides

substantial benefits to participating detainees. As

GEO notes, detainees can earn money to pay for “calls

to family and friends,” build a more personalized

relationship with security staff, experience a “change

of pace and location in an otherwise necessarily

restricted area,” and acquire valuable work experience

that detainees can leverage to their advantage in

finding post-detention employment. The VWP is

voluntary: “Detainees shall be able to volunteer for

work assignments but otherwise shall not be required

to work, except to do personal housekeeping.”

Performance-Based National Detention Standards

App-37

§ 5.8, at 405 (ICE 2016). Before this lawsuit, between

200 and 500 detainees at NWIPC participated in the

VWP program and received its benefits. 2

The Supremacy Clause, through a doctrine known

as intergovernmental immunity, “prohibit[s] States

from interfering with or controlling the operations of

the Federal Government.” United States v.

Washington (Washington I), 596 U.S. 832, 838 (2022).

Originally, intergovernmental immunity barred any

state law whose “effect . . . was or might be to increase

the cost to the Federal Government of performing its

functions,” including laws that increased the costs to

federal contractors. United States v. County of Fresno,

429 U.S. 452, 460 (1977). Now, however, a state law is

“no longer unconstitutional just because it indirectly

increases costs for the Federal Government, so long as

the law imposes those costs in a neutral,

nondiscriminatory way.” Washington I, 596 U.S. at

839 (emphasis added).

State laws applied to federal contractors are

unconstitutionally discriminatory if they “single[] out

contractors”

for

less

favorable

“treatment,”

Washington v. United States (Washington II), 460 U.S.

536, 546 (1983), or if they unfavorably regulate

contractors based on their governmental “status,”

North Dakota v. United States, 495 U.S. 423, 438

(1990) (plurality opinion); see Washington I, 596 U.S.

at 839 (adopting North Dakota’s discrimination

analysis). “[W]hat matters isn’t the intent lurking

behind the law but whether the letter of the law treats

2 As discussed below, because of the district court’s ruling, the

VWP at the NWIPC has been suspended since October 28, 2021.

App-38

those who deal with the federal government as well as

it treats those with whom the State deals itself.”

Dawson v. Steager, 586 U.S. 171, 177 (2019) (cleaned

up) (quoting Phillips Chem. Co. v. Dumas Indep. Sch.

Dist., 361 U.S. 376, 385 (1960)).

The MWA expressly exempts “[a]ny resident,

inmate, or patient of a state, county, or municipal

correctional, detention, treatment or rehabilitative

institution.” Wash. Rev. Code § 49.46.010(3) (k). The

MWA thus facially treats the federal government

differently because it does not include federal facilities

in its list of exemptions. Even if Washington intends

for the MWA to apply equally to all private employers,

including hypothetical private operators of state

detention facilities, the effect of the letter of the law is

to treat the federal government differently than

Washington treats itself. Putting this effect in context,

Washington caps its own labor programs at paying

detainees a rate that “will not exceed $40 per week.”

Wash. State Dep’t of Corr., Policy No. 700.100 at 3,

Class III Work Programs (Oct. 6, 2023). If a detainee

in a state facility in Washington works 40 hours per

week, the detainee is entitled to no more than $40. The

effect of the majority’s opinion is that an NWIPC

detainee working the same 40 hours per week would

be entitled to more than $640—a more than 1500%

increase over what Washington would pay its

detainees—solely because the NWIPC detainee is

housed in a facility operated by a federal contractor.

The majority’s rejoinder that the MWA is neutral

and generally applicable to all private employers—

that is, not based on an employer’s affiliation with the

federal government—is unpersuasive because the

App-39

statute’s application to GEO has the clear effect of

targeting only the federal government.

Washington conceded at oral argument that

nothing in the record suggests that any detention

facility in Washington other than NWIPC will be

subject to the MWA. Oral Arg. at 27:40-28:55. And the

record was developed so that if there were such a

facility, it would have been brought to the district

court’s attention. All evidence before us indicates that

the NWIPC federal detention facility is the only

detention facility in Washington subject to the MWA.

Moreover, guidance from the Washington State

Department of Labor and Industries suggests that

even were there a privately operated state-run

detention facility, those private operators would be

exempt from the MWA. 3 Wash. State Dep’t of Lab. &

Indus., Policy No. ES.A.1, § 5(k), Minimum Wage Act

Applicability (Dec. 29, 2020). This guidance

underscores that Washington is singling out only

federal detention facilities for MWA coverage. The

majority contends that the Washington Supreme

Court specifically addressed the Washington State

Department of Labor and Industries guidance and

3 The Department of Labor and Industries has determined that:

Residents, inmates or patients of the state, county or

municipal correctional detention, treatment or

rehabilitative institution assigned by the facility

officials to work on facility premises for a private

corporation at rates established and paid for by public

funds are not employees of the private corporation and

would not be subject to the MWA.

Wash. Dep’t of Lab. & Indus., Policy No. ES.A.1, § 5(k), Minimum

Wage Act Applicability, (Dec. 29, 2020).

App-40

found that a hypothetical privately-operated state

immigration facility would not be exempt from the

MWA. Maj. at 25-27. But the Washington Supreme

Court’s hypothetical does not modify what the

Washington State Department of Labor and

Industries said and, more importantly, does not alter

the reality that there are presently no private state

facilities that meet this hypothetical.

Put simply, if the NWIPC were run by

Washington, the facility would not be forced to pay

detainees the minimum wage set by the MWA. But

because NWIPC is run by a federal contractor, the

facility must pay that minimum wage. The majority

asserts the question posed here would be different “[i]f

the federal government operated the NWIPC directly,

and if Washington sought to apply its MWA to

employees of the federal government working in the

NWIPC,” Maj. at 19, but the only reason GEO must

abide by the MWA is because it is a federal contractor.

The MWA, as interpreted by the majority, 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. This violates the

Supremacy Clause. 4

4 The majority claims the MWA does not “dictate[] the terms of

the contract between ICE and GEO. It requires no action by

federal officials. Nor does it determine the work that detainees

may perform.” Maj. at 14. The majority contends that the MWA

“is analogous to state laws that impose requirements on federal

contractors that the Supreme Court ha[s] upheld as merely

increasing the federal government’s costs.” Maj. at 15. But this

claim highlights the constitutional flaw in the majority’s holding.

App-41

Caselaw from both the Supreme Court and our

court is illustrative. In Dawson v. Steager, the

Supreme Court struck down a law that “treat[ed]

retired state employees more favorably than retired

federal employees [when] no significant differences

between the two classes justif[ied] the differential

treatment.” Dawson, 586 U.S. at 175 (internal

quotation marks omitted) (quoting Davis v. Mich.

Dep’t of Treasury, 489 U.S. 803, 814-16 (1989)). Here,

there is no question that Washington treats the

NWIPC worse than it treats its own detention

facilities. Indeed, Dawson suggests that “the relevant

question isn’t whether [the NWIPC is] similarly

situated to [other private employers covered by the

MWA]; the relevant question is whether [it is]

similarly situated to those who [are exempt from the

MWA].” 5 Id. at 178. Thus, the “relevant question” is

The only detention facility to which the MWA applies is the only

one that is operated by a federal contractor, and the federal

government can either maintain the status quo and pay the over

1500% increase in labor costs GEO will incur or cease the use of

federal contractors in Washington. As Washington has

acknowledged, if the federal government operated the NWIPC, it

could not dictate the wages paid to detainees. So either

Washington is forcing a federal contractor to pay more just

because it is a federal contractor, or it is forcing the federal

government to change how it operates the NWIPC. Putting the

United States to this choice violates the Supremacy Clause.

The majority argues that “Dawson does not require, and

should not be expanded to require, that employees of the

government and employees of private institutions be treated

equally.” Maj. at 21. My application of Dawson does not expand

its scope. The relevant comparison in Dawson was between state

employees, who received the benefit, and federal employees, who

did not. Dawson, 586 U.S. at 178. Applied to the MWA, Dawson

requires equal treatment between Washington state facilities,

App-42

whether the NWIPC is similarly situated to

Washington’s own detention facilities exempt under

the MWA.

Under this lens, the NWIPC is no different from

the detention facilities operated by Washington.

Although GEO may have a more explicit profit motive

than government entities, both state and federal

governments also share an interest in reducing the

costs of detention or incarceration. And all have an

interest in providing meaningful programs, including

work programs, for detainees. Under this same lens, I

see no relevant difference between the work programs

for detainees at public detention facilities operated by

government entities and detention facilities operated

by entities like GEO. In all cases, work programs both

provide meaningful activities for detainees and

decrease the cost of detention facilities. The majority

points out that detainees at the NWIPC are not facing

criminal proceedings. Maj. at 7. But state facilities

exempt from the MWA also detain those not facing

criminal proceedings, including those who are civilly

committed. 6 The majority contends that “significant

which receive the benefit, and the NWIPC, a federal facility,

which does not. The Supreme Court in Dawson even provided an

example when it had previously “compared the class of federal

lessees with the favored class of state lessees, even though the

State urged [it] to focus instead on the disfavored class of private

lessees.” Id. at 178-79 (citing Phillips, 361 U.S. at 381-82).

6 The MWA exempts from the definition of “employee” “[a]ny

resident, inmate, or patient of a state, county, or municipal

correctional, detention, treatment or rehabilitative institution.”

Wash. Rev. Code § 49.46.010(3) (k). As one example of the reach

of this exemption, Chapter 71.05 of the Revised Code of

Washington provides for a broad range of circumstances in which

individuals may be civilly committed. As the ACLU of

App-43

differences” in how our precedent treats private

contractors and state entities render the comparison

between the NWIPC and state facilities inapposite.

Maj. at 22-23. While those differences might be

relevant in other contexts, they simply do not apply

here.

In United States v. California, 921 F.3d 865 (9th

Cir. 2019), we struck down a California statute that

imposed an inspection requirement on federal

immigration detention facilities because that

requirement did not apply to state facilities. Id. at 88285. Although we permitted the state’s imposition of

other inspection requirements that did apply to state

facilities, we reasoned that the state cannot “impose

an additional economic burden exclusively on the

federal government.” Id. at 884. We compared

inspections imposed on privately run federal

immigration detention facilities with inspections at

state and municipal detention institutions. Id. at 88285. We held that the relevant inquiry was whether the

state treated its own detention centers in the same

manner it treated federal detention facilities run by

private contractors. The same rule must apply here.

Washington seeks to impose a requirement on the

Washington, Disability Rights Washington, and the Washington

Defender Association have explained, the focus of Washington’s

Involuntary Treatment Act, Wash. Rev. Code, ch. 71.05, which

provides for civil commitment proceedings, “has shifted from

protecting

personal

liberty

and

facilitating

the

deinstitutionalization of mental health care to committing more

people over a concern for public safety.” Amicus Br. for ACLU of

Wash., et al. at 11, In re Detention of A.C., 533 P.3d 81, 85 (Wash.

2023) (Nos. 100668-3, 100690-0). As a result, the MWA employee

exception is exceedingly broad.

App-44

NWIPC that it apparently does not impose on any

other detention facility in the state. That violates the

Supremacy Clause.

The majority asserts that “[t]he case before us is

poles apart” because “Washington’s MWA does not

apply differently to private facilities employing civil

detainees depending on whether the facility is

operating pursuant to a contract with the state or a

contract with the federal government.” Maj. at 24-25.

This argument ignores the context of this case. As the

majority readily admits, “at this time there is no such

private facility operating pursuant to a contract with

the State.” Maj. at 26. The effect of the majority’s

holding is to treat federal facilities differently from

relevantly comparable state facilities.

Plaintiffs rely in large part on North Dakota, 495

U.S. 423, for the proposition that “[t]he Supremacy

Clause requires Washington to treat federal

contractors and state contractors equally—not to treat

contractors like it treats government institutions.”

The majority holds that the MWA does not violate

intergovernmental immunity because it treats all

private actors equally. Maj. at 19-22. In doing so, the

majority ignores the effect of the MWA, which is to

treat one facility that just so happens to be operated

by a federal contractor differently than all state

operated detention facilities. But in North Dakota, the

Supreme Court upheld a North Dakota law

establishing labeling and reporting requirements for

suppliers of alcoholic beverages. 7 495 U.S. at 434-39.

7 Although only four Justices joined the lead opinion in North

Dakota, 495 U.S. at 426, Justice Scalia fully concurred in the

judgment, id. at 444-48 (Scalia J., concurring in the judgment),

App-45

The case is inapposite. In North Dakota, the federal

government could not point to a single supplier in the

state that was not subject to the reporting and labeling

requirements. Id. at 437-39. All alcohol suppliers were

treated the same, regardless of their affiliation with

the federal government. Id.

Here, by stark contrast, all state detention

facilities in Washington are treated better than the

NWIPC. Washington is applying a regulation against

a federal contractor running a federal detention

facility that it does not apply to itself, any of its

facilities, or any of the facilities run by its

municipalities or other subsidiary government

entities. Contrary to the majority’s framing of the

issue, our inquiry is not whether Washington treats

all private entities alike, but whether Washington

treats a federally affiliated entity worse than it treats

any similar entity. “[T]he relevant question isn’t

whether [NWIPC is] similarly situated to [other

private employers that are not exempt from the

MWA]; the relevant question is whether [it is]

similarly situated to those who [are exempt].” Dawson,

586 U.S. at 178.

In Graves v. O’Keefe, 306 U.S. 466 (1939), the

Supreme Court upheld a New York state income tax

on salaries above a certain income level, which

happened to apply to a person employed by an

instrumentality of the federal government. Id. at 47780. As in North Dakota, the tax applied equally to all

New York residents with salaries above the income

and the remaining Justices concurred as to the reporting

requirement, id. at 448-71 (Brennan, J., concurring in the

judgment in part and dissenting in part).

App-46

threshold. Id. at 480-81. It made no difference that

some state residents fell below the threshold, because

all federal employees were treated the same as all

other employees with respect to the neutral and

universally applicable threshold. Id. Again, that is not

the case here. Although the MWA nominally extends

to all private employers, it carves out an exception for

only some detention facilities—those operated by the

state. Because application of that exception treats a

federal contractor worse than a similarly situated

class of state-run institutions, the MWA is not like the

tax at issue in Graves. As Dawson instructs, if a state

law exempts a class of employers from an otherwise

generally applicable requirement, it must extend that

exemption to all similarly situated employers

regardless of federal affiliation. Dawson, 586 U.S. at

178. 8

8 Dawson stated:

The problem here is fundamental. While the State was

free to draw whatever classifications it wished, the

statute it enacted does not classify persons or groups

based on the relative generosity of their pension

benefits. Instead, it extends a special tax benefit to

retirees who served as West Virginia police officers,

firefighters, or deputy sheriffs—and it categorically

denies that same benefit to retirees who served in

similar federal law enforcement positions.

586 U.S. at 179. One could easily transform this basic premise to

the MWA:

The problem here is fundamental. While the State was

free to draw whatever classifications it wished, the

statute it enacted does not classify [detention facilities

based on what they do]. Instead, it extends a

special . . . benefit to [facilities run by the State or

other parts of State government by exempting those

App-47

As these cases demonstrate, we must compare the

NWIPC to Washington state-run detention facilities,

the group favored by the MWA. Because all parties

agree that Washington applies an exception to itself

that it does not extend to the NWIPC, the MWA

discriminates against a federal contractor and thus

violates intergovernmental immunity principles. As

noted above, the United States adopted this view in its

statement of interest filed in the district court,

arguing that Washington’s application of the MWA to

GEO was “an aggressive and legally unjustified

effort . . . to interfere with federal immigration

enforcement,” and because “Washington excludes its

state inmates from the minimum wage . . . [t]his is a

quintessential

violation

intergovernmental

immunity principles.” DOJ Statement of Interest at 2.

The United States reiterates this view in its

amicus brief filed in this court, writing “Washington

has exempted its own detention operations from the

state minimum wage laws,” meaning “[t]he only

detainees in the state that must be paid minimum

wage are thus federal detainees—and only if those

detainees are housed in facilities owned and operated

state facilities from the obligation to pay the MWA

wage]—and it categorically denies that same benefit to

[federal facilities that perform] similar [detention

functions].

Id.

As the United States explains, applying the MWA to GEO

“contravenes intergovernmental immunity because it would

make federal detainees subject to provisions that do not apply,

and never have applied, to persons in state custody, singling out

a [federal] contractor . . . for obligations Washington does not

itself bear.” DOJ Amicus Br. at 2.

App-48

by a private contractor pursuant to the federal

government’s authority to contract.” DOJ Amicus Br.

25-26.

Because

the

purpose

the

intergovernmental immunity doctrine is to protect the

federal

government

from

burdensome

discriminatory state regulation, either directly or

through its contractors, the federal government’s

views are particularly relevant. See North Dakota, 495

U.S. at 437-38 (“The nondiscrimination rule finds its

reason in the principle that the States may not directly

obstruct the activities of the Federal Government.”). I

agree with the United States that the application of

the MWA “independently contravene[s] principles of

intergovernmental immunity by discriminating

against

the

federal

government’s

detention

operations.” DOJ Amicus Br. at 25. Applying the

MWA to GEO violates the Supremacy Clause and is

thus unconstitutional.

II. The MWA is preempted as applied to the

NWIPC.

The majority concludes that GEO and the United

States have failed to show any congressional intent “to

preempt the application of the MWA to civil detainees

held in private for-profit detention centers.” Maj. at

29. In so holding, the majority elects to support

Washington’s use of its police powers to set the

minimum wage over the federal government’s broad

authority over immigration. As the United States

points out, this decision has serious ramifications for

the United States operating immigration detention

facilities around the country. DOJ Amicus Br. at 1416. Applying the MWA to GEO “create[s] dramatic

distinctions in the allowances applicable to detainees

App-49

based on the happenstance of the location of their

detention and the operator of their detention facility.”

Id. at 15-16. Congress has recognized the benefits of

the VWP for decades, but the majority’s holding

“imperil[s] the [VWP’s] ongoing viability.” Id. at 16.

The 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.

Preemption stems from the “fundamental

principle of the Constitution . . . that Congress has the

power to preempt state law.” Crosby v. Nat’l Foreign

Trade Council, 530 U.S. 363, 372 (2000). There are

three types of preemption: “conflict, express, and

field.” Murphy v. Nat’l Collegiate Athletic Ass’n, 584

U.S. 453, 477 (2018) (internal quotation marks

omitted). Here, conflict preemption requires us to

reject application of the MWA to GEO. Conflict

preemption comes in two forms: impossibility

preemption, which is when “it is impossible . . . to

comply with both state and federal requirements,” and

obstacle preemption, which exists when a “state law

stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of

Congress.” Ryan v. Editions Ltd. W., Inc., 786 F.3d

754, 761 (9th Cir. 2015) (internal quotation marks

omitted).

For obstacle preemption, “a state law is

preempted if it ‘stands as an obstacle to the

accomplishment and execution of the full purposes

and objectives of Congress.’” Geo Grp., Inc. v. Newsom,

50 F.4th 745, 758 (9th Cir. 2022) (en banc) (quoting

App-50

California, 921 F.3d at 879). In evaluating any

preemption claim we

must be guided by two cornerstones of [the

Supreme Court’s] jurisprudence. First, “the

purpose of Congress is the ultimate

touchstone in every pre-emption case.”

Second, “[i]n all pre-emption cases, and

particularly those in which Congress has

‘legislated . . . in a field which the States have

traditionally occupied,’ . . . we ‘start with the

assumption that the historic police powers of

the States were not to be superseded by the

Federal Act unless that was the clear and

manifest purpose of Congress.’”

Wyeth v. Levine, 555 U.S. 555, 565 (2009) (alterations

in original) (citations omitted) (quoting Medtronic,

Inc. v. Lohr, 518 U.S. 470, 485 (1996)).

Few areas of the law are as exclusively within the

domain of the federal government as immigration. As

the Supreme Court has explained, “[i]mmigration

policy can affect trade, investment, tourism, and

diplomatic relations for the entire Nation, as well as

the perceptions and expectations of aliens in this

country who seek the full protection of its laws.”

Arizona v. United States, 567 U.S. 387, 395 (2012). As

part of that immigration policy, “Congress has

directed federal officials to detain noncitizens in

various

circumstances

during

immigration

proceedings.” Geo Grp., 50 F.4th at 751 (citing 8 U.S.C.

§§ 1225(b) (1) (B) (ii), (b) (2) (A), 1226(a), (c) (1),

1231(a) (6)). To carry out that directive, the Secretary

of the Department of Homeland Security (DHS) is

empowered to contract with private parties “as may be

App-51

necessary and proper to carry out the Secretary’s

responsibilities.” 6 U.S.C. § 112(b) (2). This includes

the responsibility given to the Attorney General and

carried out by DHS to “arrange for appropriate places

of detention for aliens detained pending removal or a

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

ICE, a component of DHS, does not operate its

own facilities for immigration detention. “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.” Geo Grp., 50 F.4th at

751. ICE’s contract with GEO here comes from

Congress’s preference that the federal government use

existing facilities for immigration detention. See 8

U.S.C. § 1231(g).

Embedded in this congressionally mandated

relationship between ICE and GEO, Congress has

approved “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). DHS

implements this detainee work provision through the

VWP. As noted, the VWP is governed by ICE’s

PBNDS. See Performance-Based National Detention

Standards § 5.8, at 405-09 (ICE 2016). The PBNDS

allows detainees to “volunteer for work assignments”

and guarantees monetary compensation of “at least

$1.00 (USD) per day” for any work completed. Id. at

405, 407. The VWP is purely voluntary: “Detainees

shall be able to volunteer for work assignments but

otherwise shall not be required to work, except to do

personal housekeeping.” Id. at 405. Congress has

App-52

operated in this space and set the daily rate since the

late 1970s. See Departments of State, Justice, and

Commerce, the Judiciary, and Related Agencies

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

1021, 1027 (1978). As the Eleventh Circuit recently

reaffirmed: “[N]o Court of Appeals has ever questioned

the power of a correctional institution to compel

inmates to perform services for the institution without

paying the minimum wage.” Barrientos v. CoreCivic,

Inc., 951 F.3d 1269, 1277 (11th Cir. 2020) (alteration

in original) (quoting Villarreal v. Woodham, 113 F.3d

202, 207 (11th Cir. 1997)).

Congress has expressly capped the amount which

DHS will reimburse contractors for detainee work

under the VWP. See 8 U.S.C. § 1555(d). Congress has

reserved the right to set the wage amount for detainee

work performed under the VWP through the

appropriations process. Id. Congress has set that wage

rate at $1.00 per day and has not changed that since

its implementation in 1979. The majority contends

that “other federal functions, such as, for example,

designing and building military aircraft and ships for

our national defense” are important quintessential

functions yet “[s]tate minimum wage laws are

routinely applied to federal defense contractors.” Maj.

at 32-33. However, Congress has told us the federal

immigration context is different by expressly capping

the rate at which DHS will reimburse contractors. Yet

the majority finds no issue with applying

Washington’s MWA to GEO, even though doing so

results in a dramatic increase to the wage rate set by

Congress. For instance, if an NWIPC detainee works

one hour per day, the wage set by the MWA represents

an increase of more than 1500% over the rate set by

App-53

Congress. If an NWIPC detainee works four hours per

day, that percentage increase amounts to more than

6000%. And as noted, Washington pays its detainees

no more than $40 per week, no matter how many

hours those detainees work. Applying the MWA to a

federal contractor carrying out immigration policy like

GEO fundamentally frustrates, if not entirely defeats,

the delicate immigration public and private

partnership structure envisioned and created by

Congress.

The majority argues ICE does not forbid GEO

from complying with the MWA and that GEO’s

“contract requires GEO to comply with ‘all applicable

federal, state, and local laws and standards,’ including

‘labor laws and codes’” such that the contract requires

GEO to pay its civil detainees Washington’s minimum

wage. Maj. at 34. This is, at best, a strained reading of

the contract. As the United States points out in its

amicus brief, “[n]either party understood the contract

to impose this obligation, and the federal government

has never understood any contract for operation of the

Voluntary Work Program to require payments under

a State’s minimum wage laws.” DOJ Amicus Br. at 18.

The contract’s plain language supports this mutual

understanding. GEO’s contract requires that “each

person employed” by GEO is a U.S. citizen or a lawful

permanent resident with work authorization and has

resided in the United States for the past five years.

GEO’s contract prohibits “illegal or undocumented

aliens” from being employed under the contract. By its

plain language, the contract, consistent with the

intent of the parties, did not intend for GEO to pay

civil detainees the Washington state minimum wage.

App-54

The effect of the majority opinion is that

“[c]ontractors are unlikely to agree to operate the

[VWP] on terms that would inevitably lead to

considerable unreimbursed costs,” which means

“detainees at some facilities would have no

opportunity to participate in the [VWP], despite the

benefits Congress and DHS have determined flow

from that Program.” DOJ Amicus Br. at 16. As a

result, detainees will lose access to a voluntary

program that provides meaningful benefits. This is not

speculation. As GEO notes, “application of the []MWA

has already interfered with a federal function,”

because “GEO can no longer operate the VWP at the

NWIPC.” “As an immediate consequence of the district

court’s judgments that Washington employment law

applies to operation of the VWP at the NWIPC, ICE,

at GEO’s request, suspended operation of the

program.” The detainees at NWIPC have not been able

to benefit from the VWP since October 28, 2021, when

GEO and ICE discontinued operating the VWP as a

result of the district court’s injunction. The effect of

the district court’s judgments, which the majority

affirms, is that for the past three years, detainees at

NWIPC have had no ability to participate in the VWP

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