Petition for Writ of Certiorari — The GEO Group, Inc., Petitioner v. Bob Ferguson, Governor of Washington, et al.

Supreme Court briefJul 10, 2026

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No. ______

In the

Supreme Court of the United States

________________

THE GEO GROUP, INC.,

Petitioner,

BOB FERGUSON, 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

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

July 10, 2026

QUESTION PRESENTED

Like the pending petition in GEO Group, Inc. v.

Nwauzor, No. 25-828 (filed Jan. 9, 2026), this petition

involves yet another attempt by Washington State to

dictate federal immigration detention policy by

targeting private companies providing services to the

federal government. Petitioner provides services

under contract with U.S. Immigration and Customs

Enforcement (“ICE”) at the Northwest ICE Processing

Center (“NWIPC”)

in Tacoma, Washington.

Washington disagrees with the federal government’s

immigration policies and tried to shut down

operations at the NWIPC altogether by passing a law

banning private parties from operating detention

centers within the state’s borders. After courts halted

a similar California ban as blatantly unlawful,

Washington tried another tack:

It enacted

comprehensive regulations micromanaging nearly

every aspect of day-to-day operations at the NWIPC—

and that facility alone.

The district court

preliminarily enjoined that effort, concluding that it

violates the Supremacy Clause’s intergovernmentalimmunity doctrine. But the Ninth Circuit vacated,

reasoning that Washington’s law can survive because

it targets a federal contractor rather than the federal

government itself.

The question presented is:

Whether the Supremacy Clause permits a state to

enact a law micromanaging the details of how a

federal contractor must provide services at a federal

detention facility, while exempting the state’s own

detention facilities from all those requirements.

PARTIES TO THE PROCEEDING

Petitioner (plaintiff-appellee below) is The GEO

Group, Inc. (NYSE: GEO).

Respondents (defendants-appellants below) are

Robert W. Ferguson, in his official capacity as

Governor of the State of Washington; and Nick Brown,

in his official capacity as the Attorney General of the

State of Washington. Governor Ferguson has replaced

Governor Jay Inslee as a party to these proceedings

pursuant to this Court’s Rule 35.3. Attorney General

Brown has likewise replaced Attorney General

Ferguson as a party to these proceedings pursuant to

this Court’s Rule 35.3.

iii

CORPORATE DISCLOSURE STATEMENT

The GEO Group, Inc. is a publicly traded company

(NYSE: GEO). 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:

The GEO Group, Inc. v. Inslee, et al., No. 24-2815

(9th Cir.).

The GEO Group, Inc. v. Inslee, et al., No. 3:23-cv05626-BHS (W.D. Wash.).

TABLE OF CONTENTS

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

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ........... iii

STATEMENT OF RELATED PROCEEDINGS ....... iv

TABLE OF AUTHORITIES ..................................... vii

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

OPINIONS BELOW ................................................... 3

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

CONSTITUTIONAL

AND

STATUTORY

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

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

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

B. Factual & Procedural Background .............. 8

REASONS FOR GRANTING THE PETITION....... 19

The

Supremacy

Clause

Forecloses

Washington’s Efforts To Regulate The Terms

Of Immigration Detention At The NWIPC ...... 21

A. The Circuits Are Divided Over How the

Intergovernmental-Immunity Doctrine

Applies When States Regulate Federal

Contractors ................................................. 21

B. The Ninth Circuit’s Decision Is

Profoundly Wrong....................................... 26

II. The Question Presented Is Exceptionally

Important, And This Is An Excellent Vehicle

To Resolve It ...................................................... 33

CONCLUSION ......................................................... 36

APPENDIX

Appendix A

Opinion, United States Court of Appeals

for the Ninth Circuit, GEO Grp. v. Inslee,

No. 24-2815 (Aug. 19, 2025) ........................ App-1

Appendix B

Order, United States Court of Appeals for

the Ninth Circuit, GEO Grp. v. Inslee,

No. 24-2815 (Feb. 11, 2026)....................... App-32

Appendix C

Order, United States District Court for

the Western District of Washington,

GEO Grp., Inc. v. Inslee, No. C23-5626

(Apr. 15, 2024) ........................................... App-44

Appendix D

Order, United States District Court for

the Western District of Washington,

GEO Grp., Inc. v. Inslee, No. C23-5626

(Mar. 8, 2024)............................................. App-56

Appendix E

Relevant Constitutional and Statutory

Provisions................................................. App-130

U.S. Const. art. VI, cl.2 .................... App-130

Wash. Rev. Code §70.395.020 .......... App-130

Wash. Rev. Code §70.395.040 .......... App-131

Wash. Rev. Code §70.395.060 .......... App-134

Wash. Rev. Code §70.395.070 .......... App-139

Wash. Rev. Code §70.395.080 .......... App-140

Wash. Rev. Code §70.395.100 .......... App-141

vii

TABLE OF AUTHORITIES

Cases

Arizona v. United States,

567 U.S. 387 (2012) .................................................. 6

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) ............................................ 6, 27

Chevron USA Inc. v. Plaquemines Parish,

146 S.Ct. 1052 (2026) ............................................... 6

City of Detroit v. Murray Corp.,

355 U.S. 489 (1958) ................................................ 24

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

145 F.4th 315 (3d Cir. 2025)...................... 22, 23, 24

Crandall v. Nevada,

73 U.S. (6 Wall.) 35 (1867)..................................... 27

Dawson v. Steager,

586 U.S. 171 (2019) ...................................... 4, 32, 33

GEO Grp., Inc. v. Newsom,

50 F.4th 745 (9th Cir. 2022) ................................ 8, 9

Goodyear Atomic Corp. v. Miller,

486 U.S. 174 (1988) ................................................ 27

Hancock v. Train,

426 U.S. 167 (1976) .......................................... 28, 29

Hencely v. Fluor Corp.,

146 S.Ct. 1086 (2026) ............................................. 29

Johnson v. Maryland,

254 U.S. 51 (1920) .................................................. 28

Leslie Miller, Inc. v. Arkansas,

352 U.S. 187 (1956) ................................................ 28

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ......................... 2, 4, 5

viii

North Carolina v. Ivory,

906 F.2d 999 (4th Cir. 1990).................................. 29

North Dakota v. United States,

495 U.S. 423 (1990) .................................................. 5

Nwauzor v. GEO Grp., Inc.,

127 F.4th 750 (9th Cir. 2025) .......................... 25, 35

Nwauzor v. GEO Grp., Inc.,

146 F.4th 1280 (9th Cir. 2025) .............................. 28

Pub. Utils. Comm’n v. United States,

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

United States v. Town of Windsor,

765 F.2d 16 (2d Cir. 1985) ............................... 22, 23

United States v. Virginia,

139 F.3d 984 (4th Cir. 1998).................................. 24

United States v. Washington,

596 U.S. 832 (2022) ...................................... 4, 32, 33

Washington v. United States,

460 U.S. 536 (1983) ................................................ 32

Watson v. Philip Morris Cos.,

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

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) ........................................................ 31

6 U.S.C. §112(b)(2) ...................................................... 7

6 U.S.C. §205 ............................................................ 31

8 U.S.C. §1225(b) ........................................................ 6

8 U.S.C. §1226 ............................................................ 6

8 U.S.C. §1231(a) ........................................................ 6

8 U.S.C. §1231(g)(1) .................................................... 6

8 U.S.C. §1231(g)(2) .............................................. 7, 31

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

28 U.S.C. §530C(a)(4) ............................................... 31

N.J. Stat. Ann. §30:4-8.15(d) .................................... 23

Wash. Admin. Code §246-337-005(27) ..................... 13

Wash. Rev. Code §43.70.170 .................................... 31

Wash. Rev. Code §70.395.020(1) .............................. 16

Wash. Rev. Code §70.395.020(2) (2023) ................... 11

Wash. Rev. Code §70.395.020(5) .............................. 16

Wash. Rev. Code §70.395.030(1) ................................ 9

Wash. Rev. Code §70.395.030(3) .............................. 33

Wash. Rev. Code §70.395.030(3)(a)-(h) ...................... 9

Wash. Rev. Code §70.395.040(1) .............................. 10

Wash. Rev. Code §70.395.040(1)(a) .......................... 31

Wash. Rev. Code §70.395.040(1)(i) .......................... 15

Wash. Rev. Code §70.395.050(1)-(2) ........................ 11

Wash. Rev. Code §70.395.060(1) (2023) ................... 11

Wash. Rev. Code §70.395.060(2)(a)-(p) (2023) ......... 11

Wash. Rev. Code §70.395.060(2)(b) .......................... 15

Wash. Rev. Code §70.395.060(2)(m) (2023) ............. 11

Wash. Rev. Code §70.395.070 .................................. 11

Wash. Rev. Code §70.395.070(4) .............................. 12

Wash. Rev. Code §70.395.080 .................................. 11

Wash. Rev. Code §70.395.080(1) .............................. 12

Wash. Rev. Code §70.395.080(3) .............................. 12

Wash. Rev. Code §70.395.080(6) .............................. 12

Wash. Rev. Code §70.395.100 .................................. 12

Regulations

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

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

Other Authorities

2023 Wash. Sess. Laws ch.419 ................................. 10

2025 Wash. Sess. Laws ch.235 ................................. 15

A.4300, 222d Leg., Reg. Sess. (N.J. 2026) ............... 34

A.B. 1633, 2025-2026 Reg. Sess. (Cal. 2026) ........... 34

H.B. 26-1276, 75th Gen. Assemb.,

2d Reg. Sess. (Colo. 2026) ...................................... 34

Order List (U.S. May 18, 2026) .................................. 1

Oversight of ICE Detention Facilities Hearing

Before the Subcomm. on Oversight, Mgmt.,

& Accountability of the Comm. on

Homeland Security, 116th Cong. (2019) ................. 7

Oversight of ICE Detention Facilities:

Examining ICE Contractors’ Response to

COVID-19: Hearing Before the Subcomm.

on Border Sec., Facilitation, & Operations

of the H. Comm. on Homeland Sec.,

116th Cong. (2020) ................................................... 7

Petition, GEO Group, Inc. v. Nwauzor,

No. 25-828 (filed Jan. 9, 2026)................. 1, 9, 10, 22

William Graham Sumner, A History of

Banking in All the Leading Nations (1896) ............ 5

PETITION FOR WRIT OF CERTIORARI

This petition concerns the State of Washington’s

latest salvo in its “crusade against the federal

government’s use of federal contractors to enforce

immigration policy.” App.39 (Bumatay, J., dissenting

from the denial of rehearing en banc). This Court

already has pending before it a petition from GEO

involving Washington’s unconstitutional efforts to

target and regulate federal operations at the

Northwest ICE Processing Center (“NWIPC”), see

GEO Group, Inc. v. Nwauzor, No. 25-828 (filed Jan. 9,

2026) (“Nwauzor.Pet.”), and the Court has invited the

Solicitor General to file a brief expressing the views of

the United States on that petition, see Order List at 3

(U.S. May 18, 2026). Washington’s latest effort to

target the NWIPC not only underscores the

importance of the Nwauzor petition, but provides an

independent opportunity for the Court to resolve a

circuit split about the appropriate legal standard

governing state efforts to interfere with federal

immigration policy by imposing their own, sometimesconflicting regulations on federal functions performed

by federal contractors.

For two decades, GEO has provided detention,

transportation, and food services for the NWIPC, a

facility that holds federal immigration detainees. At

every turn and across different presidential

administrations with very different immigration

policies and priorities, Washington has tried to run

the NWIPC into the ground. The state first tried to

literally wipe the NWIPC off the map, by purporting

to ban the facility outright. When that failed, it

targeted the NWIPC with an enforcement action that

forced GEO to treat federal immigration detainees

who participate in a federal voluntary work program

as employees and pay them the state minimum wage

(the policy at issue in Nwauzor). Now, it has enacted

a comprehensive set of rules to govern the day-to-day

operations of immigration detention at the NWIPC—

and the NWIPC alone.

The state insists that its blatant efforts to dictate

and discriminate against federal immigration

detention policy are consistent with the Supremacy

Clause and our basic constitutional structure because

they target a federal contractor rather than the

federal government itself. The Ninth Circuit has

blessed that (il)logic, reasoning that the immunity

from state regulation that attaches under the

Supremacy Clause is substantially narrower when the

federal government chooses to rely on service

providers rather than discharging the same federal

functions itself. App.13. In other words, in the Ninth

Circuit, when the federal government decides that the

optimal way to advance federal objectives is to rely on

federal contractors, it must concede control over the

distinctly federal functions to the states.

That approach 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 contradicts 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

defies common sense; under the Supremacy Clause

and our constitutional structure, the federal

government does not need to choose between

discharging important federal functions “in-house” or

acquiescing to state and local regulation. And a state

cannot target federal contractors performing

distinctly federal functions like immigration as a form

of protest against federal policy.

For all these reasons, 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, like the Ninth Circuit’s decision in

Nwauzor before it, 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 as the optimal agents for discharging

federal functions. The decision below makes the cost

of enlisting such private-sector assistance an open

door for state interference with core federal functions,

including in areas of unique federal interest. That is

not a cost the Supremacy Clause tolerates. The Court

should grant review 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 151

F.4th 1107 and reproduced at App.1-31. The Ninth

Circuit’s order denying rehearing en banc and the

statements respecting that order are reported at 166

F.4th 1188 and reproduced at App.32-43. The district

court’s opinion is reported at 720 F.Supp.3d 1029 and

reproduced at App.56-129. The district court’s order

denying reconsideration is unreported but available at

2024 WL 1621078 and reproduced at App.44-55.

JURISDICTION

The Ninth Circuit issued its opinion on August 19,

2025, App.1, and denied a timely rehearing petition on

February 11, 2026, App.32. Justice Kagan extended

the time for filing a petition to July 10, 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 makes the Constitution

and federal statutes “the supreme Law of the Land.”

U.S. Const. art. VI, cl.2. This Court has long held that

state laws that interfere with the execution of federal

functions violate 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 or its contractors, United

States v. Washington, 596 U.S. 832, 835 (2022). That

doctrine ensures that states cannot, “by taxation or

otherwise,” “retard, impede, burden, or in any manner

control” Congress’s chosen means of carrying federal

law into execution. McCulloch, 17 U.S. at 436.

There is an obvious temptation, also as old as the

Nation itself, for states to interfere with policies that

Congress views as national imperatives, but that are

locally unpopular in certain quarters. In the early

days of the Republic, the First Bank of the United

States provided a flash point. See 1 William Graham

Sumner, A History of Banking in All the Leading

Nations 100 (1896) (explaining how states “tried to tax

the Bank of the United States out of existence”). In

more recent days, federal immigration policy has been

the impetus for interference by states that view the

prevailing federal policy as either too lax or too

unforgiving, depending on the state and the current

administration’s enforcement posture.

But the

through line across the centuries and the varying

pressing issues of the day is that states cannot

interfere with the federal government’s operations, no

matter whether the federal government chooses to

execute the federal operations itself or via federal

contractors, as “a regulation imposed on one who deals

with the Government has as much potential to

obstruct governmental functions as a regulation

imposed on the Government itself.” North Dakota v.

United States, 495 U.S. 423, 438 (1990) (plurality op.).

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. This

Court has recognized that the federal government has

the same federal interest “in getting the Government’s

work done” when it relies on contractors instead of

federal employees. Boyle v. United Techs. Corp., 487

U.S. 500, 505 (1988).

Moreover, 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); see

Chevron USA Inc. v. Plaquemines Parish, 146 S.Ct.

1052, 1057 (2026). 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, 487 U.S. at 505-09. Consistent with

those principles, federal contractors cannot be held

liable for executing their 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. The federal government has “broad, undoubted

power” over “immigration and the status of aliens.”

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

Exercising that 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 facilitate that mandate,

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 instructed agencies

to “consider the availability” of existing detention

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

new facilities. See id. §1231(g)(2). Congress also

vested the Secretary of Homeland Security with

authority to “make contracts, grants, and cooperative

agreements” as necessary and proper to carry out his

statutory responsibilities. 6 U.S.C. §112(b)(2).

Consistent with those congressional directives,

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. Oversight of ICE Detention

Facilities: Examining ICE Contractors’ Response to

COVID-19: Hearing Before the Subcomm. on Border

Sec., Facilitation, & Operations of the H. Comm. on

Homeland Sec., 116th Cong. 1 (2020) (statement of

Rep. Kathleen M. Rice). Although those facilities are

widely dispersed geographically and operated by a

variety of different private service providers, ICE

works to ensure a significant degree of uniformity by

requiring contractors to agree to operate pursuant to

detailed federal regulations that govern virtually all

day-to-day conditions of these federal immigration

detention centers. See Oversight of ICE Detention

Facilities Hearing Before the Subcomm. on Oversight,

Mgmt., & Accountability of the Comm. on Homeland

Security, 116th Cong. 28, 30 (2019) (statement of

Diana R. Shaw).

B. Factual & Procedural Background

1. Since 2005, ICE has contracted with GEO to

provide detention, transportation, and food services at

a facility in Tacoma, Washington, that houses federal

immigration detainees “in support of the ICE EROSeattle Field Office.” C.A.App.669, 1305. That

facility, known as the NWIPC, is the only ICE

detention center in Washington, so it plays a critical

role in the government’s immigration efforts in the

Pacific Northwest. Without it, ICE would be forced

either to hold its detainees outside Washington, thus

complicating

detention,

transportation,

and

immigration-court appearances, or to construct and

operate its own detention facility—a lengthy and

expensive process. See GEO Grp., Inc. v. Newsom, 50

F.4th 745, 752-53 (9th Cir. 2022) (en banc). That

explains why the facility has remained open and

operational for 21 consecutive years, spanning five

presidential administrations of both parties.

The NWIPC’s day-to-day operations are governed

by federal standards that apply generally to ICE

detention facilities and are carefully designed to

“tailor the conditions of immigration detention to its

unique purpose.” C.A.App.833. ICE’s 2015 contract

with GEO required the company to “perform all

services in accordance with ICE 2011 PerformanceBased National Detention Standards” (“PBNDS”).

C.A.App.671. The detail and length of those federal

standards—approximately 500 pages—underscore the

distinctly federal nature of immigration detention and

the need for uniformity in federal facilities

nationwide.

The comprehensive rules dictate

everything from detainee intake and classification to

food service, sanitation, healthcare, recreation,

visitation, and telephone access. See C.A.App.8321116. As the federal contract governing the NWIPC

recognizes, compliance with those obligations has

“both an indirect and direct effect on the

accomplishment of ICE’s mission.” C.A.App.669.

2. Over the past several years, Washington has

repeatedly tried to dictate federal immigration policy

by targeting operations at the NWIPC. The state’s

objectives were laid bare in 2021 in a law purporting

to ban any “private detention facility” from operating

“within the state.” Wash. Rev. Code §70.395.030(1).

That law contained a host of exceptions such that—by

design—the only facility it affected was the NWIPC.

See, e.g., id. §70.395.030(3)(a)-(h) (listing exceptions);

App.4-5, 57. GEO challenged that law under the

Supremacy Clause. App.62. And after the Ninth

Circuit (over a dissent) struck down a materially

identical California law because it interfered with

“ICE’s contracting decisions,” Newsom, 50 F.4th at

749, 761, Washington agreed not to enforce its law

against the NWIPC, App.63.

Undeterred, Washington pivoted to less

blunderbuss efforts to try to protest and micromanage

federal immigration detention policy. The state

sought to target a voluntary work program that

federal law requires GEO to offer to federal detainees

at the NWIPC by claiming the federal program

violated state minimum-wage law (from which state

detention facilities are conveniently exempt) and

unjustly enriched GEO. See Nwauzor.Pet.10-12. The

state parlayed that unlikely theory into a $37 million

judgment against GEO and an injunction prohibiting

GEO from operating the federal program unless it

pays participating detainees the state minimum wage.

Id. But despite support for GEO from the United

States (as an amicus) across the last three presidential

administrations, the Ninth Circuit upheld that award

over a panel dissent from Judge Bennett and en banc

dissents from Judges Bumatay and Collins (joined by

five other judges). GEO petitioned this Court to decide

“[w]hether 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.”

Nwauzor.Pet.i-ii. That petition remains pending after

this Court called for the views of the Solicitor General.

This case concerns Washington HB 1470, a law

that Washington enacted in 2023 to impose a raft of

state-law conditions on detention at private facilities

in the state (a universe that not coincidentally consists

solely of the NWIPC), backed by new state-law

inspection, damages, and penalty regimes. See 2023

Wash. Sess. Laws ch. 419 (codified at Wash. Rev. Code

§§70.395.040-.080). Section 2 of HB 1470 directs the

Washington Department of Health to adopt rules

requiring private detention facilities to provide

“sanitary, hygienic, and safe conditions for detained

persons,” including rules governing personal

belongings, sanitation, laundry, hygiene items, food

service, air quality, heating and cooling, and infection

control. Wash. Rev. Code §70.395.040(1).

Section 4 required private detention centers

operating under a contract executed after January 1,

2023, to provide detainees 60 minutes of free phone

calls every day, daily in-person visitation with

unrestricted physical contact, and free access to

televisions with programming in the language of each

detainee, id. §70.395.060(1), (2)(a)-(p) (2023), along

with free weekly mental-health evaluations performed

by someone with “[k]nowledge of a detained person’s

cultural histories and contexts, as well as family

norms and values in different cultures; knowledge and

skills in accessing community resources and

community outreach; and skills in adapting services

and treatment to a detained person’s experiences and

identifying cultural contexts for individuals,” id.

§§70.395.060(2)(m), 70.395.020(2) (2023). None of this

comports with the federal government’s own detailed

regulations, but that was the whole point of HB 1470.

Since it could not simply shutter the NWIPC under

Newsom, Washington decided to try the next best

thing—namely, micromanage all its operations in

ways that contradict ICE’s own directions to service

providers like GEO.

To ensure compliance with Washington’s distinct

vision for federal immigration detention, HB 1470

creates a comprehensive state-law inspection and

enforcement regime. The law mandates routine,

unannounced inspections by the state agencies, Wash.

Rev. Code §70.395.050(1)-(2), and authorizes private

and public enforcement, see id. §§70.395.070,

70.395.080. Specifically, HB 1470 gives detained

persons a private action for damages and injunctive

relief, id. §70.395.070, and authorizes the Washington

Attorney General to recover civil penalties of up to

$1,000 per violation per day, with each violation

treated as “a separate and distinct offense,” id.

§70.395.080(1), (3).

As with its past efforts to countermand federal

immigration detention policy, Washington had to

work hard to single out the NWIPC for HB 1470’s

numerous requirements, exempting a vast array of

other places where people are detained, including

juvenile facilities, civil-commitment and treatment

facilities, quarantine facilities, work-release facilities,

extraordinary-medical-placement

facilities,

residential substance-use-disorder facilities, and

tribal facilities. See id. §70.395.100. HB 1470 also

makes clear that Washington is unwilling to live with

these same demands when it comes to its own

facilities. The state and its agencies are immune from

liability for violating the law’s requirements. See id.

§§70.395.070(4), 70.395.080(6). The predictable and

intended result of all those exemptions is a law

gerrymandered to effectively regulate only one entity:

the NWIPC.

3. GEO filed this suit in July 2023 against

Washington officials, seeking a declaration that HB

1470 violates the Supremacy Clause, along with a

preliminary and permanent injunction. See App.5.

GEO argued that HB 1470 violates the Supremacy

Clause several times over: It is preempted by federal

laws empowering the Secretary of Homeland Security

to identify, inspect, and regulate private detention

facilities. It directly regulates the federal detention

function by controlling the terms of ICE’s detention

contract, in violation of the intergovernmentalimmunity doctrine. And it discriminates against a

federal contractor by exacting burdens not imposed on

comparable state facilities, also in violation of the

intergovernmental-immunity

doctrine.

See

D.Ct.Dkt.8 at 11-22.

Washington defended its law by arguing that the

intergovernmental-immunity doctrine does not apply

with full force here because GEO is a federal

contractor. The state claimed that HB 1470 “[b]y

definition” does not directly regulate the federal

government because it is aimed at GEO, “a private

company,” D.Ct.Dkt.17 at 10, and insisted that

McCulloch’s admonition that states cannot “retard,

impede, burden, or in any manner control” federal

activities, 17 U.S. at 436, no longer remains good law,

D.Ct.Dkt.17 at 11-12. As for the anti-discrimination

rule, the state claimed that HB 1470 does not

discriminate because Washington purportedly

imposes similar requirements on residential

treatment facilities—defined as “a facility in which

twenty-four hour on-site care is provided for the

evaluation, stabilization, or treatment of residents for

substance use, mental health, co-occurring disorders,

or for drug exposed infants,” Wash. Admin. Code §246337-005(27)—even though those facilities are

expressly exempted from HB 1470, Wash. Rev. Code

§70.395.030(3), see D.Ct.Dkt.17 at 5, 13-16.

The district court granted preliminary relief,

agreeing with GEO that HB 1470 impermissibly

discriminates. See App.87-129. After surveying the

“language and history of HB 1470,” the court found

that its purpose “is to impose conditions specifically on

the NWIPC.” App.91-92. The court held that §2

impermissibly discriminates against the federal

government’s contractors because it imposes burdens

on the NWIPC that Washington does not impose on

comparable state detention facilities, such as state

prisons and state detainment facilities. App.87-101,

124-27. The court rejected the state’s reliance on

residential treatment facilities for two reasons: First,

it concluded that those healthcare facilities are not

similarly situated to the NWIPC; and second, it

concluded that §2 does not regulate the NWIPC in the

same manner that state law regulates residential

treatment facilities.

App.94-101.

As the court

explained, “private immigration detention facilities

and

residential

treatment

facilities

serve

fundamentally different purposes, are authorized to

exercise vastly different degrees of control over those

who fall under their purview, and operate out of

categorically different types of facilities.” App.99.1

The state appealed. On appeal, the United States

filed an amicus brief supporting GEO and the district

court’s holding that HB 1470 violates the Supremacy

Clause. As it explained, intergovernmental immunity

forbids states from “singling out the federal

government or federal contractors for unique burdens

or otherwise subjecting them to unfavorable

treatment,” C.A.U.S.Br.1, and states cannot avoid

that rule by defining “private detention facility” in

facially neutral terms while exempting every category

of state and local contractor that might otherwise be

covered, C.A.U.S.Br.8-12. Nor can Washington defeat

GEO’s discrimination claim by comparing the NWIPC

1 The district court rejected GEO’s other arguments and held

that it lacked standing to challenge §4’s obligations because the

then-existing contract between GEO and ICE had been executed

before January 1, 2023. App.75-77.

to residential treatment facilities, which “differ in all

crucial respects” from federal immigration detention

facilities.

C.A.U.S.Br.2, 12-18.

The proper

comparators, the United States explained, are prisons,

jails, and other facilities where people are detained for

violating the law, which Congress itself treats as

comparable to immigration detention facilities.

C.A.U.S.Br.15-16. And as compared to those facilities,

HB 1470 plainly imposes discriminatory obligations

on GEO. C.A.U.S.Br.15-18.

While that appeal was pending, and after oral

argument, Washington amended HB 1470. Those

amendments make “several but, in the context of this

case, largely nonmaterial changes to HB 1470,” App.5,

including some modifications to the inspection

provisions and changes to the conditions-of-detention

standards for private detention facilities, see 2025

Wash. Sess. Laws ch.235, §§1-3, 6 (HB 1232). Like its

predecessor statute, the law as amended continues to

regulate the ins and outs of detention at the NWIPC.

It requires automatic water-temperature regulation

“at all plumbing fixtures,” Wash. Rev. Code

§70.395.040(1)(i)(iii), and mandates free, confidential

telephone

service

for

all

detainees,

id.

§70.395.060(2)(b).

It also includes open-ended

provisions requiring written policies and procedures

that assure detainees are protected from (i) “[a]buse,”

which encompasses “an act” that “in any way

jeopardizes a detained person’s health, welfare, or

safety,” and (ii) “[n]eglect,” which includes a “[r]efusal

to acknowledge, hear, or consider a detained person’s

concerns.” Id. §70.395.020(1), (5).2

4. The Ninth Circuit vacated the injunction and

remanded. App.2. The panel rejected GEO’s directregulation intergovernmental-immunity argument,

relying on Circuit precedent deeming “the scope of a

federal contractor’s protection from state law under

the Supremacy Clause [as] substantially narrower

than that of a federal employee or other federal

instrumentality.” App.13. Although the panel agreed

that HB 1470 will “change the way GEO treats

[federal immigration] detainees,” that did not matter

because GEO is a private contractor, and the Ninth

Circuit believes that “[a] state has greater ability to

regulate a contractor of the federal government than

to regulate the government itself.” App.13, 17.

Next, the panel rejected the district court’s

discrimination analysis. The panel conceded that, “as

a practical matter, HB 1470 applies only to the

NWIPC,” while exempting Washington’s prisons and

jails. App.18. But the panel deemed state prisons and

jails the wrong point of comparison, in part because

they are state owned, whereas the NWIPC is privately

owned. App.36-37. The panel instead agreed with the

state that the NWIPC is more like privately owned

and operated residential treatment facilities. App.1922. While those facilities are likewise exempt from HB

1470, the panel nevertheless remanded for the district

2 After Washington enacted those amendments, the panel

rejected GEO’s suggestion of mootness, concluding that “HB

1232’s changes have resulted in a law that is ‘substantially

similar’ to HB 1470’s initial text, and that this appeal is therefore

not moot.” App.6.

court to decide whether HB 1470’s requirements are

sufficiently analogous to various requirements that

Washington separately imposes on residential

treatment facilities. See App.22-26. The panel also

rejected GEO’s preemption and direct-regulation

arguments. App.12-17, 27-30.

5. GEO petitioned for rehearing en banc. As in

Nwauzor, the Ninth Circuit denied the petition over

substantial dissent, this time written by Judge

Bumatay and joined by seven other judges. App.3243. Judge Bumatay recognized that this case is

“merely the latest round in the State of Washington’s

crusade against the federal government’s use of

federal contractors to enforce immigration policy.”

App.39. And he explained how Nwauzor ensures that

it will not be the last, as it is “a ‘dangerous precedent’”

that “allow[s] ‘any State [to] impair any federal

policy—no matter how central to the federal

government—so long as the State regulates federal

contractors rather than the federal government

itself.’” App.38.

In reality, Judge Bumatay explained, “this case

should have been easy.” App.42. The state has

“imposed a series of state regulations directed solely at

the [NWIPC]” that “dictate nearly every facet of how

the federal government must treat alien detainees at

the Center—from the detainees’ right to use their

personal belongings, to the mandatory provision of

special diets, to free phone calls, to a right of ‘privacy’

during personal visits, to housekeeping.” App.39.

Rather than imposing those rules through “across-theboard state regulations,” the state “exempts any of its

own facilities—including state and local detention

facilities, jails, and prisons—from both the regulations

and their enforcement mechanisms.” App.39. By

doing so, “Washington State has told Washington,

D.C. … ‘Rules for thee but not for me[,]’” and then tried

to justify its burdensome and discriminatory laws on

the theory that it may regulate the NWIPC however it

wants because it “is run by a federal contractor” rather

than the federal government itself. App.39-40.

As to the panel’s holding about the appropriate

comparator to the NWIPC, the dissenting judges

agreed that “state jails and prisons” are “obviously”

the correct comparator because they, like the NWIPC,

“detain those accused or convicted of violating the law,

whether immigration or state criminal law,” and

because both groups of facilities share “comparable

concerns for public safety and ensuring appearances

at future proceedings.”

App.40-41.

Instead of

accepting that straightforward conclusion, however,

the panel “invent[ed] a new set of rules [for]

immigration detention centers run by federal

contractors” by focusing “myopically on the smallest

subset of inapt comparators”: residential treatment

facilities. App.42. Those “private sector healthcare

facilities,” the dissent argued, are wholly different

from the NWIPC and the interests implicated by

detention pending immigration proceedings. App.42.

Because “the power to burden is the power to

destroy,” and “state destruction of federal operations

is something the Supremacy Clause doesn’t permit”

even when a law is aimed at private contractors, the

dissenting judges concluded that the court should

have upheld the injunction against Washington’s

discriminatory law. App.43.

REASONS FOR GRANTING THE PETITION

The decision below green lights Washington to

enforce a burdensome and discriminatory state law

that dictates the day-to-day operations of a federal

immigration-detention facility, down to the level of

requiring fresh fruits and vegetables to appear on

federal detainees’ meal trays. The statute imposes no

comparable burdens on those housing state and local

detainees—for the rather obvious reason that the

Washington law is a protest against federal

immigration policy, rather than a neutral effort to

regulate detention facilities. The Ninth Circuit’s

approval of that discriminatory targeting of distinctly

federal operations is deeply flawed, deepens a preexisting circuit split, and warrants certiorari both in

its own right and as a complement to the pending

Nwauzor petition.

The circuits are divided about the correct legal

standard to apply when deciding whether state

regulation of federal contractors violates the

intergovernmental-immunity doctrine. The Second,

Third, and Fourth Circuits look to the substance of the

challenged state regulation and hold that a state law

that controls a federal contractor’s performance of a

federal function carries the same constitutional sting

as direct regulation of, or discrimination against, the

federal government. The Ninth Circuit has repeatedly

held the opposite: Because GEO is a private entity

providing services that assist the federal government

in carrying out a distinctly federal function,

Washington is free to impose restrictions that it could

not impose directly on the federal government’s own

operations and that it chooses not to impose on its own

detention facilities.

That outlier approach is deeply flawed.

Intergovernmental immunity exists not to protect

particular parties, but to protect federal functions

from state interference. That interference is every bit

as damaging when the federal government chooses to

carry out federal functions through a federal

contractor. Indeed, the discretionary judgment that

certain distinctly federal functions are best discharged

by enlisting a private service provider rather than

standing up permanent government bureaucracies is

itself an important federal decision that should be

shielded from state interference. By holding to the

contrary, the Ninth Circuit has effectively conditioned

the federal government’s sovereign prerogative to

carry out federal functions through federal contractors

on surrendering its right to function free from state

interference. That cannot be squared with this Court’s

precedent or the basic structure of our Constitution.

The question presented is exceptionally

important, and this case presents an excellent vehicle

to address it. Both the federal government and federal

contractors need to know what protection from state

interference federal functions retain when the

government enlists the aid of private parties to

accomplish them. That is especially true in the

context at issue here, as 80% of immigration detainees

are held in privately owned and operated facilities.

The Ninth Circuit’s persistent willingness to penalize

the federal government for using contractors to

facilitate immigration detention threatens to

jeopardize the entire federal detention regime.

In short, this Court should grant certiorari to

resolve a consequential circuit split, provide muchneeded guidance about the scope of intergovernmental

immunity and curb the efforts of states to hamstring

federal immigration policies they disfavor. In the

alternative, the Court should consolidate this petition

with the petition in Nwauzor and grant both, or hold

this petition pending disposition of Nwauzor.

The

Supremacy

Clause

Forecloses

Washington’s Efforts To Regulate The Terms

Of Immigration Detention At The NWIPC.

The decision below entrenches a circuit split and

dilutes the Supremacy Clause. In conflict with the

Second, Third, and Fourth Circuits, the Ninth Circuit

deems the federal government entitled to less

protection under the intergovernmental-immunity

doctrine when it decides to accomplish federal

functions through contractors rather than employees.

But there is no Supremacy Clause exception for

federal functions carried out through federal

contractors. The Ninth Circuit’s contrary view has no

basis in precedent or first principles, and would

perversely punish the federal government for

exercising its sovereign prerogative about the best

means through which to advance federal interests.

A. The Circuits Are Divided Over How the

Intergovernmental-Immunity Doctrine

Applies When States Regulate Federal

Contractors.

As explained in the Nwauzor petition, courts of

appeals are sharply divided about what legal standard

applies when courts decide whether state regulations

of federal contractors performing federal functions

violate

intergovernmental

immunity.

See

Nwauzor.Pet.20-25. 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

intergovernmental-immunity

protection

“substantially

narrower”

when

the

federal

government uses federal contractors, such that states

may regulate contractors in ways that they concededly

could not regulate the federal government itself. The

Ninth Circuit’s decision here further entrenches that

split and underscores the need for 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 agreed that

the Supremacy Clause would forbid it from

“demand[ing] compliance with the Code from the

[federal] government” itself, it maintained that “it

may demand compliance from the Government’s

contractors.” Id. at 18. The Second Circuit squarely

rejected

that

argument,

explaining

that

“[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 state

law would frustrate federal objectives. Id.

The Third Circuit reached the same conclusion in

its recent decision in CoreCivic, Inc. v. Governor of

New Jersey, 145 F.4th 315 (3d Cir. 2025). 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. CoreCivic, 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). Virginia’s law required private investigators to

obtain a state license. Id. at 985-86. When the

Commonwealth

threatened

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. See 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. Here, as in Nwauzor, the Ninth Circuit

eschewed that dominant approach in favor of treating

“a federal contractor’s protection from state law” as

“substantially narrower” than the federal government’s. App.13; see Nwauzor v. GEO Grp., Inc., 127

F.4th 750, 760-61 (9th Cir. 2025). Thus, in the Ninth

Circuit, the federal government’s immunity from state

regulation of a federal function does not extend to a

federal contractor carrying out the same function at

the federal government’s direction.

The decision below repeats Nwauzor’s error (both

were authored by the same judge) in treating GEO’s

status as a federal contractor as dispositive of the

direct-regulation claim. The panel agreed that HB

1470 “change[s] the way GEO treats [federal

immigration] detainees.” App.17. So if the federal

government owned and operated the NWIPC directly

instead of enlisting GEO’s services, there is no doubt

that HB 1470 would violate intergovernmental

immunity by unlawfully regulating immigration

detention. But because HB 1470 “imposes obligations

on GEO, a federal contractor” rather than the federal

government, App.15 (emphasis in original), the panel

found no Supremacy Clause problem, reasoning that

“[a] state has greater ability to regulate a contractor

of the federal government than to regulate the

government itself.” App.13. The Ninth Circuit’s

approach of treating state regulation of a federal

function (immigration detention) differently based on

the identity of the entity performing that federal

function (a federal contractor versus a federal

employee) was thus outcome-determinative.

The same legal mistake infects the Ninth Circuit’s

analysis of GEO’s discrimination claim. The panel

admitted that, if the “appropriate comparator” to the

NWIPC were “Washington’s prisons,” it would have

“agree[d] with [the district court’s] decision striking

down” HB 1470. App.19-20. But it disagreed that the

state’s jails and prisons are the appropriate

comparator—in large part because “Washington owns

and operates its prisons,” whereas “the federal

government neither owns nor operates the NWIPC.”

App.21; see App.36 (Fletcher, J., respecting denial of

rehearing en banc) (treating the fact that “GEO’s

facility is privately owned and operated” while

“Washington’s prisons and jails are governmentally

owned and operated” as one of two “important

differences between” them). Put differently, had the

federal government chosen to operate the NWIPC

directly instead of through a federal contractor, the

discrimination claim could have succeeded.

In short, the panel and rehearing decisions below,

like the panel and rehearing decisions in Nwauzor,

rest squarely on the deeply flawed view that

discriminatory state regulation of federal functions

can be excused so long as the state aims that

regulation at federal contractors rather than the

federal government. Nwauzor.Pet.25-30.

B. The Ninth

Circuit’s

Profoundly Wrong.

Decision

The Ninth Circuit is on the short side of this

circuit split for a reason:

Its outlier view 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. Nor

can states encroach on a federal field by characterizing

their regulations at a high level of generality to

obscure the fact that they are regulating a function

assigned to the federal government alone. Indeed, the

dichotomy erected by the Ninth Circuit not only fails

to protect federal functions from state interference,

but interferes directly with the federal government’s

discretion to decide whether distinctly federal

functions—like housing federal detainees awaiting

federal process—are best discharged with the

assistance of private service providers or by the

federal government itself.

1. This Court has long explained that “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). And rightly so, as regulation of

private contractors “obviously implicate[s] the same

interest in getting the Government’s work done.”

Boyle, 487 U.S. at 505. The 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. See

Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 44-45 (1867)

(the Court has “uniformly denied” state laws that

“affec[t] the functions of the Federal government” or

“impede or embarrass the … operations of that

government”).

For example, the 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, 189-90 (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 uranium processing 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.

As Judge Bumatay has persuasively explained,

“[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.”

Nwauzor v. GEO Grp., Inc., 146 F.4th 1280, 1286 (9th

Cir. 2025) (Bumatay, J., dissenting from the denial of

rehearing en banc). Despite the Ninth Circuit’s

repeated insistence to the contrary, there is nothing

talismanic about the identity of the entity performing

a federal function; what matters under the Supremacy

Clause is that the federal government must remain

free to exercise its federal functions in the manner

that it chooses without state interference, regardless

whether it chooses to carry out that federal function

via federal employee or federal contractor. See supra,

pp.26-28. Thus, the fact that ICE has decided to enlist

GEO’s assistance rather than own and operate the

NWIPC itself is irrelevant. Because Washington

cannot permissibly impose HB 1470’s regulations of

the conditions of detention on the federal government

itself, it likewise cannot impose them on GEO when

the federal government has chosen to carry out its

federal immigration detention functions through that

federal contractor. The Ninth Circuit’s contrary rule

penalizes the United States for exercising its plenary

sovereign prerogative to advance federal objectives

through private parties.

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

(“the Supremacy Clause” does not bar “all state

regulation which may touch the activities of the

federal government”).

Federal employees and

contractors alike must follow state laws that do not

discriminate based on their federal relationship or

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”). Hence, federal contractors cannot

assert blanket immunity from state regulation just

because they are “working for the federal

government.” Hencely v. Fluor Corp., 146 S.Ct. 1086,

1098 (2026). And “those who contract to furnish

supplies or render services to the government … do

not perform governmental functions” simply because

they are federal contractors. Id. But when a

contractor is enlisted to perform a distinctly

governmental—and distinctly federal—function, this

Court’s precedent has long taught that it should not

be treated any differently than the federal government

itself.

Here, nobody disputes that HB 1470 regulates the

federal function of immigration detention. Indeed, the

Ninth Circuit acknowledged that the statute “seeks …

to change the way GEO treats [NWIPC] detainees.”

App.17. That should have ended the case. The

detainees at the NWIPC are not Washington’s

detainees or GEO’s detainees. They are federal

immigration detainees, held pursuant to federal

authority, in aid of federal immigration proceedings,

under a federal contract, and subject to federal

detention standards. When Washington attempts to

dictate how those detainees must be housed, fed,

visited, monitored, supplied, and provided services,

Washington is regulating federal immigration

detention operations no matter whether those

regulations fall on federal contractors or federal

employees.

The extent of Washington’s interference with the

federal government’s detention policy is difficult to

overstate. While the federal government has chosen

to enlist private companies to assist with the day-today operation of facilities housing some 80% of all

federal immigration detainees, that hardly means the

federal government is indifferent to how those

facilities are operated. To the contrary, ICE has

developed some 500 pages of regulations governing

the minute details of operating the facilities, and it

makes compliance with those regulations a condition

of contracting. On many of those details, Washington

has very different views from the federal government.

For example, although the PBNDS allow detainees to

keep “a reasonable amount of personal property,”

there is a comprehensive list of items that “detainees

may not retain.” C.A.App.1308-09. HB 1470, by

contrast, instructs that detainees shall be allowed to

use their “personal belongings to the extent possible.”

Wash. Rev. Code §70.395.040(1)(a). And while the

PBNDS generally require “pre-clearance approvals”

for access to ICE facilities, C.A.App.670, HB 1470

demands that state inspectors receive “free and

unimpeded access” to the NWIPC. Wash. Rev. Code

§43.70.170.

The scope for conflicting directions from state and

federal authorities will only expand now that the

Ninth Circuit has given Washington a green light to

issue detailed regulations to govern the NWIPC.

Those conflicts implicate and violate another aspect of

this Court’s Supremacy Clause jurisprudence—

namely, that state efforts to intrude into a distinctly

federal field like immigration are preempted. See

C.A.Dkt.75 at 16-21; C.A.Dkt.29 at 50-58. Congress

has expressed a preference for contractor detention

facilities, which ICE must consider “[p]rior to”

constructing a new government-run facility. 8 U.S.C.

§1231(g)(2). Congress has also delegated to the

Secretary of Homeland Security responsibility to enter

“contracts, grants, or cooperative agreements with

non-Federal parties.” 28 U.S.C. §530C(a)(4); see also

6 U.S.C. §112(b). And in 2019, Congress created the

Office of the Immigration Ombudsman to inspect

contractor-run facilities and address complaints

concerning precisely the issues that HB 1470 purports

to address. 6 U.S.C. §205. These provisions and the

web of regulations they authorize are sufficient to

occupy the field of immigration detention, in which the

federal government has a unique interest.

Ultimately, whether analyzed under the rubric of

intergovernmental immunity or of preemption, two

things are clear: The Supremacy Clause does not

tolerate Washington’s interference with the distinctly

federal functions at issue here, and the Ninth Circuit’s

decision to authorize that interference because ICE

has decided to enlist the aid of federal contractors in

carrying out federal functions cannot be squared with

this Court’s precedents.

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

discrimination 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), as 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.

The Ninth Circuit agreed that HB 1470—owing to

all its exemptions and exceptions—applies only to the

NWIPC. App.18. But it vacated the injunction

against the relevant provisions anyway, because it

deemed residential treatment facilities focused on

healthcare a better comparator than state prisons and

jails focused on detention. See App.19-26. And the

panel reached that otherwise entirely dubious

conclusion largely because the NWIPC is privately

owned whereas the state’s jails and prisons are not.

App.21, 36.

In effect, then, the Ninth Circuit

concluded that discrimination against private

contractors on the basis of their relationship with the

federal government does not count for Supremacy

Clause purposes. That conclusion is impossible to

reconcile with Washington, which made clear that it

does not matter whether the target is a federal

instrumentality, a federal employee, or a federal

contractor; discrimination against any of them is

verboten. See 596 U.S. at 838.

Regardless, even accepting the Ninth Circuit’s

dubious assertion that an immigration detention

center is more comparable to a residential treatment

facility than to a prison or jail, see App.19-26, HB 1470

still discriminates against the NWIPC because state

law expressly exempts those very residential

treatment facilities from complying with HB 1470’s

requirements, see Wash. Rev. Code §70.395.030(3).

That suffices to foreclose any claim that Washington

has treated GEO the same as it treats residential

treatment facilities. See Dawson, 586 U.S. at 178-79.

II. The Question Presented Is Exceptionally

Important, And This Is An Excellent Vehicle

To Resolve It.

This case, like Nwauzor, presents an important

and recurring question about whether states may

control federal operations by regulating the federal

contractors through whom the federal government

acts. That question 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, or whether they 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 third

parties can perform with greater flexibility or

expertise. The answers to both questions should be

clear and uniform.

These questions are not hypothetical. States are

increasingly targeting federal contractors to

undermine federal immigration policy. California has

proposed a 50% gross receipts tax on “private

detention facilities” that contract with a federal

agency. A.B. 1633, §1, 2025-2026 Reg. Sess. (Cal.

2026) (introduced Jan. 26, 2026). New Jersey has

proposed a 50% gross receipts tax on private “carceral”

facilities that detain individuals who violate state or

federal law. A.4300, 222d Leg., Reg. Sess. (N.J. 2026)

(introduced Feb. 19, 2026). Other recently enacted

legislation likewise aims at private facilities that hold

federal immigration detainees. H.B. 26-1276, 75th

Gen. Assemb., 2d Reg. Sess. (Colo. 2026).

The consistent involvement of the United States

in GEO’s cases underscores the importance of these

Supremacy Clause issues. As in Nwauzor, the United

States filed an amicus brief supporting GEO in this

case arguing that, by singling out the NWIPC for

burdensome regulations, HB 1470 violates the

intergovernmental-immunity

doctrine.

See

C.A.U.S.Br.7-18. The federal government’s repeated

participation in these cases across administrations is

unsurprising. While the last two administrations did

not agree on immigration policy, they could agree that

the Ninth Circuit’s approach to the Supremacy Clause

impermissibly allows states to interfere with a

distinctly federal function.

This is an excellent vehicle to resolve the question

presented. The Ninth Circuit held that GEO’s status

as a federal contractor defeats its direct-regulation

claim, App.12-17; that jails and prisons are not

appropriate comparators to the NWIPC because it is

privately owned and operated, App.19-21; and that

state regulation of federal functions is not preempted

because—ignoring the distinctly federal nature of the

work performed—regulating private businesses is a

traditional exercise of the police power, App.28-29.

And though this petition arises in a preliminaryinjunction posture, there is nothing tentative about

the Ninth Circuit’s entrenched view that federal

contractors performing federal functions are entitled

to substantially narrower protection than the federal

government itself. App.13; see, e.g., Nwauzor, 127

F.4th at 760-61 (applying that standard).

In the alternative, the Court should consolidate

this petition with the Nwauzor petition and grant

certiorari. This case is a clean companion to Nwauzor;

both involve the same state, the same federal

contractor, the same federal facility, and the same

mistaken Ninth Circuit premise that Washington may

do indirectly to a federal contractor what it could not

do directly to the federal government. At minimum,

the Court should hold this petition pending its

disposition of Nwauzor.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for certiorari. In the alternative, it should

either consolidate this petition with GEO Group, Inc.

v. Nwauzor, No. 25-828, and grant certiorari, or hold

this petition pending disposition of Nwauzor.

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

July 10, 2026

APPENDIX

TABLE OF APPENDICES

Appendix A

Opinion, United States Court of Appeals

for the Ninth Circuit, GEO Grp. v. Inslee,

No. 24-2815 (Aug. 19, 2025) ........................ App-1

Appendix B

Order, United States Court of Appeals for

the Ninth Circuit, GEO Grp. v. Inslee,

No. 24-2815 (Feb. 11, 2026)....................... App-32

Appendix C

Order, United States District Court for

the Western District of Washington,

GEO Grp., Inc. v. Inslee, No. C23-5626

(Apr. 15, 2024) ........................................... App-44

Appendix D

Order, United States District Court for

the Western District of Washington,

GEO Grp., Inc. v. Inslee, No. C23-5626

(Mar. 8, 2024)............................................. App-56

Appendix E

Relevant Constitutional and Statutory

Provisions................................................. App-130

U.S. Const. art. VI, cl.2 .................... App-130

Wash. Rev. Code §70.395.020 .......... App-130

Wash. Rev. Code §70.395.040 .......... App-131

Wash. Rev. Code §70.395.060 .......... App-134

Wash. Rev. Code §70.395.070 .......... App-139

Wash. Rev. Code §70.395.080 .......... App-140

Wash. Rev. Code §70.395.100 .......... App-141

App-1

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________

No. 24-2815

________________

THE GEO GROUP, INC.,

Plaintiff-Appellee,

JAY INSLEE, Governor; ROBERT FERGUSON,

Defendants-Appellants.

________________

Argued: Feb. 14, 2025

Filed: Aug. 19, 2025

________________

Before: William A. Fletcher, Ronald M. Gould, and

Jacqueline H. Nguyen, Circuit Judges.

________________

OPINION

________________

W. FLETCHER, Circuit Judge:

Plaintiff-Appellee the GEO Group (“GEO”) owns

and operates a private, for-profit detainment facility,

the

Northwest

Immigration

and

Customs

Enforcement Processing Center (“NWIPC”), in

Washington State. The NWIPC confines noncitizen

civil detainees while their immigration status is

determined. GEO obtained a preliminary injunction

against the Defendants-Appellants, then-Governor

App-2

Jay Inslee and then-Attorney General Robert

Ferguson (together, “Washington”), preventing

enforcement of several provisions of House Bill 1470

(“HB 1470”), a Washington law that protects the

health and safety of the civil detainees held in the

NWIPC. We vacate and remand.

Background

GEO operates detainment facilities and private

prisons throughout the country under contracts with

the federal government. In 2024, GEO had $2.42

billion in total revenue and a net income of $31.9

million. The GEO Group Reports Fourth Quarter and

Full Year 2024 Results, The GEO Group, Inc. (Feb. 27,

2025), https://investors.geogroup.com/news-releases/

news-release-details/geo-group-reports-fourth-quarter

-and-full-year-2024-results.

GEO operates the NWIPC in Tacoma,

Washington, under a contract with Immigration and

Customs Enforcement (“ICE”). The NWIPC is the only

immigration detention facility in Washington. Persons

held at the NWIPC are civil detainees, awaiting

administrative review of their immigration status.

Some detainees lack legal status in the United States.

Others are lawful permanent residents, some with

work authorization. Detainees are held until they are

either deported or released into the United States.

As described in more detail below, the relevant

provisions of Washington’s HB 1470, as amended by

HB 1232 in May 2025, require the NWIPC to provide

nutritious food in a clean and safe facility, authorize

inspections related to these requirements, and

authorize a monetary penalty for violations. The

App-3

question before us is whether these provisions are

consistent with federal law.

A. Predecessors to HB 1470 and HB 1232

In 2020, the Washington legislature passed two

related statutes.

First, the legislature passed Senate Bill 6442. S.B.

6442, 66th Leg., Reg. Sess. (Wash. 2020), enacted as

2020 Wash. Sess. Laws ch. 318. The statute prohibited

Washington’s Department of Corrections (“DOC”)

from contracting with private prisons for placement or

transfer of state prisoners except in emergencies.

Wash. Rev. Code § 72.68.110(1). The legislature

passed the statute after finding that “profit motives

lead private prisons to cut operational costs, including

the provision of food, health care, and rehabilitative

services.” 2020 Wash. Sess. Laws ch 318, § 1(2).

Second, the legislature passed House Bill 2576.

H.B. 2576, 66th Leg., Reg. Sess. (Wash. 2020), enacted

as 2020 Wash. Sess. Laws ch. 284. That statute

instructed Washington’s Department of Health

(“DOH”) to evaluate and report on private detention

facilities in Washington State. The statute provided

that “all people confined in prisons and detention

facilities in Washington deserve basic health care,

nutrition, and safety, regardless of whether those

people are confined in publicly or privately operated

facilities.” Id. § 1. DOH finished its report in

November 2020. The report noted that “private

detention centers are not all the same. Detainee and

advocate complaints are almost exclusively associated

with the [NWIPC]. This facility is [the] state’s only

privately operated, adult immigration detention

center.”

App-4

In 2021, based on the findings in the DOH report,

the Washington Legislature passed House Bill 1090.

H.B. 1090, 67th Leg., Reg. Sess. (Wash. 2021), enacted

as 2021 Wash. Sess. Laws, ch. 30. The statute

prohibited the operation of any “private detention

facility within the state.” Wash. Rev. Code

§ 70.395.030. After our court’s en banc decision in

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

2022), which invalidated a similar law passed in

California, Washington stipulated that it would not

enforce HB 1090 against GEO’s operation of the

NWIPC. See GEO Group, Inc. v. Inslee, 702 F. Supp.

3d 1043, 1046 (W.D. Wash. Nov. 16, 2023).

B. HB 1470

In 2023, in the wake of Newsom, the Washington

legislature passed House Bill 1470. H.B. 1470, 68th

Leg. Reg., Sess. (Wash. 2023), enacted as 2023 Wash.

Sess. Laws ch. 419. In enacting HB 1470, the

Washington legislature found

that all people confined in prisons and

detention facilities in Washington deserve

basic health care, nutrition, and safety. As

held in United States v. California, 921 F.3d

865, 886 (9th Cir. 2019), states possess “the

general authority to ensure the health and

welfare of inmates and detainees in facilities

within its borders.” States have broad

authority to enforce generally applicable

health and safety laws against contractors

operating private detention facilities within

the state. The [N]inth [C]ircuit reinforced this

authority in Geo Group, Inc. v. Newsom, 50

F.4th 745, 750 (9th Cir. 2022), stating

App-5

“[p]rivate 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.”

Wash. Rev. Code § 70.395.010. Four sections of HB

1470 are at issue in this appeal.

C. HB 1232

On May 12, 2025, after we heard oral argument in

this case, now-Governor Ferguson signed Second

Substitute House Bill 1232 (“HB 1232”). See

Engrossed Second Substitute H.B. 1232, 69th Leg.,

Reg. Sess. (Wash. 2025). HB 1232 makes several but,

in the context of this case, largely nonmaterial

changes to HB 1470.

D. The Present Suit and Appeal

In July 2023, GEO filed a complaint in federal

district court against Washington, seeking declaratory

and injunctive relief against the enforcement of HB

1470. As relevant to this appeal, GEO challenged

Sections 2, 3, 5 and 6 of HB 1470. The district court

concluded that it “ha[d] subject-matter jurisdiction to

consider GEO’s constitutional challenges to Sections

2, 3, 5, and 6 of HB 1470.” The court held that all of

these

sections

violate

the

doctrine

intergovernmental immunity and granted a

preliminary injunction against their enforcement.

Washington timely appealed.

E. Motion by GEO

After the passage of HB 1232, GEO moved in this

court for a dismissal of the current appeal and a

remand to the district court on the ground that

App-6

changes to HB 1470 wrought by HB 1232 mooted the

appeal. Washington opposed the motion on the ground

that the changes are relatively minor and that the

substance of the appeal remains properly pending in

this court.

We agree with GEO that HB 1232 affects some of

the issues on appeal. However, we disagree with

GEO’s conclusion that we should dismiss the appeal

as moot. Although “the repeal, amendment, or

expiration of challenged legislation is generally

enough to render a case moot and appropriate for

dismissal,” that presumption is rebutted when the

legislative change results in a law that is

“substantially similar” to the challenged legislation.

Bd. of Trs. Of Glazing Health & Welfare Tr., 941 F.3d

1195, 1198 (9th Cir. 2019). We conclude that HB

1232’s changes have resulted in a law that is

“substantially similar” to HB 1470’s initial text, and

that this appeal is therefore not moot. Cf. Teter v.

Lopez, 125 F.4th 1301, 1307 (9th Cir. 2025) (en banc)

(finding appeal moot after legislative changes when

the defendant “ha[d] ceased to enforce the challenged

law because it no longer exist[ed]”). Most of the

questions presented to us remain largely unchanged

by HB 1232.

We deny GEO’s motion in part and grant in part.

We decide some questions now. We remand other

questions to the district court.

II. Jurisdiction and Standard of Review

We have jurisdiction over interlocutory orders

“granting, continuing, modifying, refusing or

dissolving injunctions, or refusing to dissolve or

modify injunctions[.]” 28 U.S.C. § 1292(a)(1). We

App-7

review the grant or denial of a preliminary injunction

for abuse of discretion. See Adidas Am., Inc. v.

Skechers USA, Inc., 890 F.3d 747, 753 (9th Cir. 2018).

We review underlying legal issues de novo “because a

district court would necessarily abuse its discretion if

it based its ruling on an erroneous view of law.” Id.

(internal quotation marks omitted) (quoting

GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1204

(9th Cir. 2000)).

III. Preliminary Injunctive Relief

To obtain a preliminary injunction, a plaintiff

must establish “that he is likely to succeed on the

merits, that he is likely to suffer irreparable harm in

the absence of preliminary relief, that the balance of

equities tips in his favor, and that an injunction is in

the public interest.” Winter v. Nat. Res. Def. Council,

Inc., 555 U.S. 7, 20 (2008). “Likelihood of success on

the merits is ‘the most important’ factor; if a movant

fails to meet this ‘threshold inquiry,’ we need not

consider the other factors.” California v. Azar, 911

F.3d 558, 575 (2018) (quoting Disney Enters., Inc. v.

VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017)).

IV. Discussion

A. Sections 2, 3, and 6 of HB 1470 and

Relevant Provisions of HB 1232

Section 2 of HB 1470 requires Washington’s DOH

to “adopt rules as may be necessary to . . . ensure

private detention facilities comply with measurable

standards providing sanitary, hygienic, and safe

conditions for detained persons.” Wash. Rev. Code

§ 70.395.040(1). Section 2 provides that Washington’s

Attorney General “may enforce violations of this

section on its own initiative or in response to

App-8

complaints or violations.” Id. § 70.395.040(2). DOH

has not yet adopted regulations under Section 2. HB

1232 modifies Section 2 in minor respects.

Section 3 of HB 1470 provides that DOH

“shall . . . [c]onduct routine, unannounced inspections

of private detention facilities including, but not

limited to, inspection of food services and food

handling, sanitation and hygiene, and nutrition[,]”

and shall “[c]onduct investigations of complaints

received relating to any private detention facility

located within the state.” Wash. Rev. Code

§ 70.395.050(1)(a)-(1)(b) (now § 70.395.05(2)(a)-(2)(b)).

Section 3 further provides that Washington’s

Department of Labor and Industries “shall conduct

routine, unannounced inspections of workplace

conditions at private detention facilities, including

work undertaken by detained persons.” Id.

§ 70.395.050(4) (now § 70.395.050(5)). The Office of

Washington’s Attorney General “may enforce

violations of this section on its own initiative or in

response

complaints

violations.”

Id.

§ 70.395.050(5) (now § 70.395.050(6)). HB 1232 does

not affect any of the issues presented to us under

Section 3.

Section 6 of HB 1470 provides that “[a]ny person

who fails to comply” with HB 1470 “may be subject to

a civil penalty in an amount of not more than $1,000

per violation per day.” Id. § 70.395.080(1). Section 4 of

HB 1232 provides a “civil fine of up to $10,000 per

violation, not to exceed a total fine of $1,000,000, on a

private

detention

facility”

under

certain

circumstances. H.B. 1232 § 4.

App-9

Article III Case or Controversy

We first address the question whether GEO’s

challenges to HR 1470, as amended by HR 1232,

constitute a case or controversy within the meaning of

Article III. The district court concluded that they do

constitute a case or controversy. We agree.

Washington contends that because DOH has not

yet adopted implementing rules for Section 2 (now

including amendments contained in HB 1232), GEO

has not yet suffered an injury in fact. Washington

contends that GEO’s pre-enforcement challenge to

Section 2 and relevant enforcement-related portions of

Sections 3 and 6 (and now relevant portions of HB

1232) is therefore unripe under Article III. We regard

Washington’s contention as equivalent to a contention

that GEO lacks Article III standing. We wrote in

Thomas v. Anchorage Equal Rights Commission, 220

F.3d 1134, 1139 (9th Cir. 2000) (en banc) (internal

quotation marks and citations omitted), a preenforcement injury case:

Whether the question is viewed as one of

standing or ripeness, the Constitution

mandates that prior to our exercise of

jurisdiction there exist a constitutional case

or controversy, that the issues presented are

definite and concrete, not hypothetical or

abstract. In assuring that this jurisdictional

prerequisite is satisfied, we consider whether

the plaintiffs face a realistic danger of

sustaining a direct injury as a result of the

statute’s operation or enforcement.

See also Newsom, 50 F.4th at 753 (“Whether framed

as standing or ripeness, California’s injury

App-10

requirements ‘boil down to the same question.’”

(citation omitted)).

“Pre-enforcement injury is a special subset of

injury-in-fact.” Peace Ranch, LLC v. Bonta, 93 F.4th

482, 487 (9th Cir. 2024). We have “adopt[ed] the

Supreme Court’s framework” for determining whether

a plaintiff bringing a pre-enforcement challenge has

satisfied Article III’s injury-in-fact requirement. Id.

That test requires the plaintiff to show “an intention

to engage in a course of conduct arguably affected with

a constitutional interest, but proscribed by a statute,

and there exists a credible threat of prosecution

thereunder.” Susan B. Anthony List v. Driehaus, 573

U.S. 149, 159 (2014) (quoting Babbitt v. United Farm

Workers Nat’l Union, 442 U.S. 289, 298 (1979)).

GEO is already required, pursuant to its contract

with the government, to comply with PerformanceBased National Detention Standards (“PBNDS”) in its

operation of the NWIPC. It contends that Section 2

will impose additional requirements. Before the

passage of HB 1232, GEO contended that rules

implementing Section 2 will require it to change the

existing heating and cooling air conditioning system

in the NWIPC; to provide exclusively fresh fruits and

vegetables, whereas the PBNDS requires fresh fruits

and vegetables only in specific situations; and to

provide a list of specified personal toiletries to

detainees on a regular basis, whereas the PBNDS does

not require the provision of such toiletries. HB 1232

makes clear that the NWIPC is not required to provide

exclusively fresh fruits and vegetables; it is now

required to provide a “balanced diet, including fresh

fruits and vegetables.” (Emphasis added.) However,

App-11

the heating and cooling, as well as the personal

toiletries, issues remain.

We conclude that GEO has alleged sufficient

injury in fact to bring a pre-enforcement challenge to

Section 2 and relevant enforcement-related provisions

of Sections 3 and 6 of HB 1470, as well as relevant

provisions of HB 1232. We recognize that DOH has not

yet adopted rules implementing Section 2, as amended

by HB 1232. But it is clear that DOH intends to adopt

such rules, and that, once adopted, DOH intends to

enforce them against GEO. GEO contends that there

is a likelihood that such rules will require it to make

the changes described above. GEO contends that

requiring such changes will violate the doctrine of

intergovernmental immunity, and, further, that such

changes will be preempted by federal law. Because no

rules have yet been adopted implementing Section 2,

as amended by HB 1232, GEO’s pre-enforcement

challenge is limited to the question whether GEO has

shown a sufficient likelihood that DOH will adopt such

rules to justify a preliminary injunction.

2. Challenges to Sections 2, 3, and 6 of

HB 1470 and Relevant Provisions of HB 1232

GEO argues, first, that Sections 2, 3, and 6 of HB

1470

are

invalid

under

the

doctrine

intergovernmental immunity, and, second, that they

are preempted. We apply its argument to relevant

provisions of HB 1232 as well. (For convenience from

this point on, when we refer to sections of HB 1470 we

also refer to relevant provisions contained in HB 1232

unless otherwise indicated.)

App-12

Intergovernmental Immunity

“[I]ntergovernmental immunity attaches only to

state laws that discriminate against the federal

government and burden it in some way.” United States

v. California, 921 F.3d 865, 880 (9th Cir. 2019).

Because federal contractors are not the federal

government, “states may impose some regulations on

federal contractors that they would not be able to

impose on the federal government itself.” Newsom, 50

F.4th at 760 n.10. “If the immunity of federal

contractors is to be expanded beyond its narrow

constitutional limits, it is Congress that must take

responsibility for the decision, by so expressly

providing as respects contracts in a particular form, or

contracts under particular programs.” United States v.

New Mexico, 455 U.S. 720, 737 (1982) (citing James v.

Dravo Contracting Co., 302 U.S. 134, 161 (1937)).

“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). We address in turn

these two ways in which a state law can be invalid

under the intergovernmental immunity doctrine.

Direct Regulation

In the portion of its brief arguing that HB 1470 is

an impermissible direct regulation, GEO focuses only

on the requirements of Section 2. GEO does not make

separate arguments directed to the inspection and

enforcement provisions in Sections 3 and 6. Based on

the manner in which GEO has made its arguments,

we conclude that GEO’s objections to Sections 2, 3 and

App-13

6 based on direct regulation stand or fall based on its

arguments about the validity of Section 2.

The district court held that Section 2 “does not

regulate the federal government directly in violation

of the intergovernmental immunity doctrine.” We

agree.

A state has greater ability to regulate a contractor

of the federal government than to regulate the

government itself. As we wrote in Newsom, “The scope

of a federal contractor’s protection from state law

under the Supremacy Clause is substantially

narrower than that of a federal employee or other

federal instrumentality.” Newsom, 40 F.4th at 755.

GEO relies on three cases in particular to support

its argument that HB 1470 is impermissible direct

regulation.

First, GEO relies on our en banc decision in

Newsom. GEO characterizes AB 32, the California

statute at issue in that case, as “similar” to HB 1470.

It writes that HB 1470 was adopted “for the express

purpose of circumventing this Court’s en banc decision

in Newsom,” suggesting that Newsom requires us to

hold that HB 1470 is discriminatory.

It is true that HB 1470 was enacted after it

became clear that AB 32 was unconstitutional under

our holding in Newsom. But it is also true that HB

1470 was specifically designed to avoid the

unconstitutional aspects of AB 32. HB 1470 is poles

apart from AB 32. AB 32 flatly forbade the operation

in California of private detention facilities operating

under contract with the federal government. In

contrast to AB 32, HB 1470 permits the operation of

private detention facilities such as the NWIPC in

App-14

Washington. Further, in holding AB 32 invalid in

Newsom, we emphasized the extraordinary degree of

direct control over federal operations authorized by

AB 32:

AB 32 would override the federal

government’s position, pursuant to discretion

conferred by Congress, to use private

contractors to run its immigration detention

facilities. It would give California a “virtual

power of review” over ICE’s detention

decisions, and allow the ‘discretion of the

federal officers [to] be exercised . . . only if the

[state] approves.’

Id. at 751 (citations omitted). No such control is

authorized in HB 1470.

Contrary to GEO’s argument, Newsom supports

rather than undermines the decision we reach here. It

is undisputed that the purpose and effect of HB 1470

is to protect the health and safety of detainees in the

NWIPC. Our opinion in Newsom explicitly recognized

the authority of a state to protect the health and safety

of those within its borders:

States’s historic police powers include

regulation of health and safety. And these

historic powers extend to laws regulating

health and safety in federal detention

facilities located within a state.

Id. at 766 (citations omitted). See also California, 921

F.3d at 886 (states have “the general authority to

ensure the health and welfare of inmates and

detainees in facilities within its borders”).

App-15

Second, GEO relies on Boeing Co. v. Movassaghi,

768 F.3d 832 (9th Cir. 2014), contending that the facts

there are “remarkably similar” to the facts here. In

Movassaghi, a California statute required a

“responsible party” to “take or pay for appropriate

removal or remedial action” at a particular site in

California that had been heavily polluted. Id. at 839.

The federal government accepted responsible-party

status at that site and recognized that, as the

responsible party, it was required under state law to

clean up the site. The federal government “actively

conduct[ed] the cleanup through its cleanup

contractor, Boeing.” Id. at 839.

The California statute imposed higher clean up

standards and costs on the government than the

clean-up standards and costs imposed by federal law.

We struck down the California statute, holding that it

directly, and therefore impermissibly, regulated the

federal government as a responsible party. In

Newsom, we characterized the statute at issue in

Movassaghi as “impermissibly interfer[ing] with

federal functions by overriding federal contracting

decisions” rather than “merely increas[ing] the federal

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

The case before us is not controlled by

Movassaghi. First, and most important, the statute in

Movassghi imposed an obligation directly on the

federal government. HB 1470 imposes no obligation on

the federal government. Instead, it imposes

obligations on GEO, a federal contractor. Second,

unlike the statute in Movassaghi, HB 1470 does not

“impermissibly” “overrid[e] federal contracting

decisions.” Id. Many, perhaps all, of the obligations

App-16

imposed by Section 2 are already imposed by the

federal government itself, through GEO’s contract

with ICE. The contract explicitly orders GEO to

comply with obligations imposed under state law, even

when those obligations are more demanding than

those imposed under federal law:

All services [at the NWIPC] must comply

with . . . all applicable federal, state, and

local laws and standards. Should a conflict

exist between any of these standards, the

most stringent shall apply.

Finally, HB 1470 does not increase the federal

government’s costs. Under GEO’s contract with the

government, any increased costs are borne by GEO,

not by the government.

Third, after briefing was completed in this appeal

GEO brought to our attention United States v. King

County, Washington, 122 F.4th 740 (9th Cir. 2024), in

support of its position. In King County, the

government had challenged a county executive order

that forbade companies at Boeing Field, a small

airport just south of Seattle, from providing essential

services such as fueling to flights chartered by

Immigration and Customs Enforcement (“ICE”). We

held that the order violated intergovernmental

immunity on two grounds. First, the order “forc[ed]

ICE either to stop using Boeing Field or to use

government-owned planes there.” Id. at 756. Second,

the order “‘singl[ed] out’ the federal government and

its contractors for unfavorable treatment,’ . . .

‘burdening federal operations, and only federal

operations.’” Id. at 757.

App-17

King County is very different from the case before

us. First, unlike in King County, nothing in

Washington law results in the federal government

being unable to use contractors in the State. HB 1470

does not seek to shut down the NWIPC; nor does it

limit ICE’s ability to detain any individual in the

NWIPC. Through the passage of HB 1470,

Washington seeks only to change the way GEO treats

its detainees. Second, unlike in King County,

Washington has not “singled out” the NWIPC for

unfavorable treatment. As we will discuss in a

moment, Washington law regulates two types of

residential treatment facilities, in which people are

held in involuntary civil confinement, in a very

similar—perhaps identical—fashion.

In sum, Section 2 does not “require[] ICE to

entirely transform its approach to detention in the

state or else abandon its [Washington] facilities.”

Newsom, 50 F.4th at 750. It does not give Washington

“‘virtual power of review’ over ICE’s detention

decisions.” Id. at 751. Nor does it “prevent ICE’s

contractors from continuing to run detention

facilities.” Id. at 750. We thus conclude that while

Section 2 of HB 1470 does regulate GEO, it does not

directly regulate the federal government.

ii. Discriminatory Regulation

(a) Sections 2 and 3 of HB 1470 and

Relevant Provisions of HB 1232

In the portion of its brief arguing that HB 1470 is

an impermissible discriminatory regulation, GEO

again focuses on the requirements of Section 2. It does

not make a separate argument directed to the

inspection or enforcement provisions in Sections 3.

App-18

Based on the manner in which GEO has made its

arguments, we conclude that GEO’s objections to

Sections 2 and 3 of HB 1470 based on discriminatory

regulation stand or fall based on its arguments about

the validity of Section 2. We address Section 6 in a

separate subsection.

A state law or regulation impermissibly

discriminates against the federal government if it

treats a state entity more favorably than it treats a

comparable federal entity. Dawson v. Steager, 586

U.S.

171,

175-76

(2019).

The

“important

consideration” is whether the state has “singled out

contractors who work for the United States for

discriminatory treatment.” Washington v. United

States, 460 U.S. 536, 544, 546 (1983). A state law or

regulation that burdens only a federal contractor is

not impermissibly discriminatory if it “duplicate[s]

requirements otherwise mandated under” state law

that are imposed on similarly situated state

contractors. California, 921 F.3d at 873; see also

Washington v. United States, 460 U.S. at 541 (sales

tax that applied only to federal contractors did not

violate

intergovernmental

immunity

because

“Washington . . . impose[s] a sales tax on all purchases

from contractors who do not deal with the Federal

Government”).

HB 1470 is written in general terms, applying to

“for-profit prisons and detention facilities in the

state.” However, the NWIPC is the only such

detention facility in Washington. Thus, as a practical

matter, HB 1470 applies only to the NWIPC. The fact

that HB 1470 applies only to the NWIPC does not, by

itself, mean that it violates the intergovernmental

App-19

immunity doctrine. See Washington, 460 U.S. at 54145 (rejecting argument that statute specifically

targeting federal contractors was discriminatory

solely on that basis); id. at 540 (citing United States v.

Mexico, 455 U.S. 720, 734 (1982) (“[I]mmunity may not

be conferred simply because” the law “has an effect on

the United States, or even because the Federal

Government shoulders the entire economic burden.”)).

To determine whether HB 1470 is impermissibly

discriminatory, we evaluate how Washington law

treats entities that are “similarly situated” to GEO.

Dawson, 586 U.S. at 177. If Washington law treats

similarly situated entities in the same manner HB

1470 treats the NWIPC, HB 1470 is not impermissibly

discriminatory.

The key issue in this case is whether the entities

to which we should compare the NWIPC are state

prisons or civil detention facilities. For the reasons

explained below, we conclude that the appropriate

comparators are civil detention facilities.

The district court held that Section 2

impermissibly discriminates against the federal

government because it “impose[s] various burdens on

the NWIPC that do not apply to any similarly situated

facility in the State.” The court concluded that the

“similarly situated facilit[ies] in the State” are

Washington’s state-owned and state-operated prisons

rather than private residential treatment facilities

and civil commitment facilities (collectively, “civil

detention

facilities”)

Washington.

Using

Washington’s prisons as the comparator, the district

court concluded that Section 2 is impermissibly

discriminatory.

App-20

GEO has consistently contended that the entities

to which the NWIPC should be compared are

Washington’s prisons. In agreeing with GEO, the

district court relied in substantial part on our decision

in California. The district court wrote, “[T]he court [in

California] implicitly reasoned that immigration

detention facilities are similarly situated to state and

local detention facilities, such as prisons and jails.” If

the district court had been correct in concluding that

the appropriate comparator is Washington’s prisons,

we would agree with its decision striking down

Sections 2 and 3 of HB 1470. However, we disagree

with that conclusion.

In California, we compared California’s treatment

of civil immigration detention facilities, on the one

hand, to its treatment of California detention facilities

that held convicted criminals and those charged with

crimes, on the other. We were not asked to compare

California’s regulation of civil immigration facilities to

its regulation of civil detainment facilities. Because we

“decide only questions presented by the parties,”

United States v. Sineneng-Smith, 590 U.S. 371, 376

(2020), and because of the fundamental difference

between civil detainees and those charged or convicted

with crimes, we decline to hold that our comparison in

California controls here. Now properly presented with

the question, we therefore decide whether the

appropriate comparison in this case is to private

facilities holding civil detainees or to the public

prisons and jails holding convicted criminals and

those charged with crimes.

GEO has consistently argued that the appropriate

comparator to the NWIPC is Washington’s prisons. In

App-21

arguing that prisons are the appropriate comparator,

GEO asks us to ignore the critical fact that inmates in

Washington’s prisons have been convicted of crimes,

and that the conditions of their confinement are part

of a penal regime. By contrast, none of the detainees

held in the NWIPC has been convicted of—or even

charged with—a crime. Cf. Zadvydas v. Davis, 533

U.S. 678, 690 (2001) (Immigration detention is “civil,

not criminal” and “nonpunitive in purpose and

effect.”); Mahler v. Eby, 264 U.S. 32, 39 (1924) (“It is

well settled that deportation, while it may be

burdensome and severe for the alien, is not a

punishment.”). All of the detainees in the NWIPC are

civil detainees, awaiting determination of their

immigration status. As we noted above, some of the

detainees will be deported based on that

determination. Some will be released into the United

States. GEO also asks us to ignore the fact that

Washington owns and operates its prisons. By

contrast, the federal government neither owns nor

operates the NWIPC. Rather, the NWIPC is owned

and operated by GEO, a private, for-profit company.

Because of the fundamental differences between

Washington’s prisons, which are state-owned and

state-operated facilities that hold and punish

convicted criminals, and the NWIPC, which is a

privately owned and privately operated detention

facility that holds civil detainees, we conclude that the

appropriate comparator is not Washington’s prisons.

Washington has consistently argued that the

entities to which the NWIPC should be compared are

privately owned and operated civil detention facilities.

Like the civil detainees in the NWIPC, many of the

individuals in these facilities are held in involuntary

App-22

confinement. See, e.g., Wash. Rev. Code §§ 71.05.01071.05.950 (Washington’s Involuntary Treatment Act);

id. § 11.130.330(7) (recognizing that facilities can

involuntarily detain individuals consistent with

Washington’s Involuntary Treatment Act); id.

§ 10.77.150(4) (allowing courts to grant “conditional

release of [a] person to a less restrictive alternative,

including residential treatment” facilities); and id.

§§ 9.94A.660, 9.94A.664 (allowing courts to issue

sentences “conditioned on the offender entering and

remaining in a residential substance use disorder

treatment program,” id. § 9.94A.664(1)(a)). Also like

the civil detainees in the NWIPC, individuals confined

in these facilities are not confined because they have

committed crimes, and the conditions of their

confinement are not part of any punishment. See, e.g.,

Addington v. Texas, 441 U.S. 418, 428-30 (1979)

(explaining the fundamental differences between

criminal and civil commitments, including that ‘[i]n a

civil commitment state power is not exercised in a

punitive sense”). We therefore agree with Washington

that the appropriate comparators to the NWIPC are

these civil detention facilities.

Section 2 sets forth required conditions of

confinement for detainees held in the NWIPC. As

noted above, DOH has not yet adopted rules

implementing those requirements. However, even

before implementing rules have been adopted by

DOH, it is evident that the statutory and contractual

requirements imposed on the NWIPC are almost

identical to the requirements imposed under

Washington law on the two types of civil detention

facilities to which we compare them. See California,

App-23

921 F.3d at 882-84. We describe in turn the required

conditions of confinement in these three facilities.

First, Section 2 requires DOH to adopt rules

implementing its requirements that the NWIPC

(1) maintain a “safe, clean, and comfortable

environment that allows a detained person to use the

person’s personal belongings to the extent possible”;

(2) clean and sanitize living areas “regularly”;

(3) “provide laundry facilities”; (4) provide “[b]asic

personal hygiene items . . . at no cost”; (5) “provide a

nutritious and balanced diet, including fresh fruits

and vegetables”; (6) maintain “[s]afe indoor air

quality”; (7) have “heating and air conditioning

equipment that can be adjusted by room or area”; and

(8) operate an “infection control program.” Wash. Rev.

Code § 70.395.040.

Second, residential treatment facilities in

Washington are “twenty-four hour . . . facilities” that

“provid[e] health care services to persons with mental

disorders or substance abuse disorders.” Wash.

Admin. Code § 246-337-001 (2023). These facilities are

required under Washington law to maintain an

effective “infection control program,” id. § 246-337060; to serve three nutritious meals per day, with

modifications appropriate to medical conditions and

religious preferences, id. § 246-337-111; to provide

laundry facilities that are clean and in good repair, id.

§ 246-337-112; to provide housing that is in good

repair, with “heating, ventilation, and air

conditioning,” id. § 246-337-120; to provide bathing

and toilet areas with soap and toilet paper, id. § 246337-124; to provide laundry facilities, id. § 246-337128; to provide heating and air conditioning that can

App-24

maintain “interior temperatures between sixty-five

degrees Fahrenheit and seventy-eight degrees

Fahrenheit year-round,” id. § 246-337-135; and to

maintain the facility in a clean and sanitary condition,

id. § 246-337-146.

Third, involuntary civil commitment facilities in

Washington are facilities where individuals are

confined against their will despite the fact that they

have not been convicted of a crime. Such facilities

include, for example, mental health hospitals where

mentally ill individuals are civilly committed under

Washington’s Involuntary Treatment Act. Wash. Rev.

Code §§ 71.05.010-71.05.950. These facilities are

required under Washington law to “[e]stablish and

implement an effective hospital-wide infection control

program,” Wash. Admin. Code § 246-322-100 (2024);

to provide a safe and clean environment, including a

ventilation system and a “heating system operated

and

maintained

sustain

comfortable

temperature,” id. § 246-322-120; to provide sleeping

rooms with adequate space and bed linens, id. § 246322-140; to provide adequate toilet fixtures and rooms,

as well as adequate sink and bathing fixtures, id.

§ 246-322-160; to provide three well-balanced and

nourishing meals per day, id. § 246-322-230; and to

provide laundry and linen services, id. § 246-322-240.

We have held that there is no “de minimis

exception to the doctrine of intergovernmental

immunity.” California, 921 F.3d at 883. “Any economic

burden that is discriminatorily imposed on the federal

government is unlawful.” Id. at 883-84 (emphasis in

original). With GEO’s challenge in its current

posture—before DOH has promulgated any rules

App-25

implementing Section 2—the question before us is

whether there is a likelihood that DOH will adopt

rules under Section 2 that are different from the

requirements applicable to the two types of civil

detention facilities.

GEO’s discrimination argument in its brief is

based almost entirely on a comparison of the

requirements imposed by Section 2 with the

requirements Washington imposes on its prisons.

GEO argues only in passing that Section 2 is

discriminatory based on a comparison of its

requirements to the requirements Washington

imposes on the two types of civil detention facilities.

The only requirements of Section 2 to which GEO has

specifically objected in its brief are three requirements

discussed in the portion of its brief dedicated to its

argument about Article III case or controversy.

Generously construed, GEO’s argument is that these

three requirements are different from the comparable

requirements imposed on the civil detention facilities,

and that they are therefore discriminatory.

Though it is a close question, we conclude that the

best course of action is not to decide ourselves at this

point whether Washington regulates the conditions of

confinement at the NWIPC differently from the way it

regulates the conditions of confinement in the two civil

detention facilities. The best course of action is,

rather, to allow the district court to do so in the first

instance. That court should make the comparison

between the requirements imposed on the NWIPC by

Section 2 of HB 1470, as amended by HB 1232, and

the requirements imposed by Washington law on the

two types of civil detention facilities. Because the

App-26

district court concluded that the appropriate

comparator is Washington’s prisons, it made no

attempt to make that comparison with respect to the

requirements imposed by Section 2; and, because of its

recent enactment, the district court of course could not

have included in such a comparison the requirements

of HB 1232. We remand to allow the district court to

make that comparison.

(b) Section 6 of HB 1470 and

Section 4 of HB 1232

As noted above, Section 6 of HB 1470 provides

that “[a]ny person who fails to comply” with HB 1470

“may be subject to a civil penalty in an amount of not

more than $1,000 per violation per day.” Id.

§ 70.395.080(1). Section 4 of HB 1232 provides a “civil

fine of up to $10,000 per violation, not to exceed a total

fine of $1,000,000, on a private detention facility”

under certain circumstances. H.B. 1232 § 4.

For two reasons, Washington argues in its brief

that Section 6 is not a discriminatory burden. First,

DOH possesses the “authority to impose fines on other

facilities for non-compliance with its regulations.” For

example, Wash. Admin. Code § 246-322-025(6) (2023)

allows “civil fines on a psychiatric hospital . . . of up to

$10,000 per violation.” Second, Washington contends

that “other facilities are subject to a much more

stringent enforcement mechanism: DOH’s authority

to deny or suspend their license or ability to operate at

all.” Further, Wash. Admin. Code § 246-337-021(6)

(2023) allows DOH to “revoke” a license of a

residential treatment facility that “[f]ail[s] to comply”

with DOH regulations. Washington therefore argues

that the NWIPC is thus “better off” than the civil

App-27

detention facilities to which we compare it. See

Washington, 460 U.S. at 541-42 (emphasis in original).

GEO has made no argument to the contrary. In its

responding brief, GEO describes the penalty

authorized in Section 6, but it does not argue that it is

discriminatory. However, GEO has not yet had an

opportunity to make an argument that Section 6,

combined with Section 4 of HB 1232, is discriminatory.

The district court struck down Section 6 as a

natural corollary of its decision that the requirements

of Section 2 were unconstitutional. But that decision

was, of course, premised on a comparison to

Washington’s prisons rather than the private civil

detention facilities to which we now hold are the

appropriate comparators. We vacate the district

court’s decision and remand to allow that court to

make that comparison in the first instance.

Preemption

The district court held that Sections 2, 3 and 6 of

HB 1470 are not preempted by federal law. Of course,

that court had no opportunity to address HB 1232.

However, given the relatively small changes

effectuated by HB 1232, we conclude that its

preemption analysis would not have been affected.

Federal law preempts state law when Congress

has occupied the “field,” enacting a “scheme of federal

regulation . . . so pervasive as to make reasonable the

inference that Congress left no room for the States to

supplement it.” Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230 (1947). Federal law also 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

App-28

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). Once triggered, the presumption

against preemption applies “even if the law ‘touch[es]

on’ an area of significant federal presence.” Id.

(alteration in original) (quoting Puente Ariz. v. Arpaio,

821 F.3d 1098, 1104 n.5 (9th Cir. 2016)); 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., 821 F.3d at 1104. To 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).

Field Preemption

GEO points to the constitutional authority of the

federal government to regulate immigration and

argues that many state-imposed immigration-related

measures, including those at issue here, are

preempted by federal law. We rejected a similar

argument in California, where California law

authorized inspection, inter alia, of federal detention

facilities holding noncitizens “for purposes of civil

immigration proceedings.” California, 921 F.3d at 875.

The inspections included review of “conditions of

confinement” and “standard of care.” Id. at 876. We

App-29

noted that the government did not “dispute that

California possesses the general authority to ensure

the health and welfare of inmates and detainees in

facilities within its borders,” and held that the

government had failed to “demonstrate any intent, let

alone ‘clear and manifest,’ that Congress intended to

supersede this authority.” Id. (emphasis in original);

see also Newsom, 40 F.4th at 766 (emphasizing a

state’s “historic” powers in this domain). Similarly, we

see no indication that Congress has demonstrated any

intent, let alone a clear and manifest intent, to

preempt Sections 2, 3 and 6 of HB 1470 and relevant

portions of HB 1232.

ii. Obstacle Preemption

GEO contends in its brief that “HB 1470 presents

an unconstitutional obstacle to the accomplishment of

the government’s carefully crafted standards for the

conditions of alien detention.”

As noted above, to prevail in its argument, GEO

must overcome the presumption against preemption.

See California, 921 F.3d 886. HB 1470 and HB 1232

do not apply to the United States. They apply to GEO.

Nothing in Sections 2, 3 and 6 frustrates the federal

government’s ability to detain individuals at the

NWIPC. Nor do these sections prevent GEO from

accomplishing any task that has been required by the

federal government—especially when its own contract

with ICE contemplates more stringent state

requirements in the first place. We therefore conclude

that GEO has not established that these statutes

constitute obstacle preemption.

App-30

B. Section 5

Section 5 of HB 1470 provides to a “detained

person” a private cause of action for monetary and

injunctive relief for a violation of HB 1470, including

the requirements set forth in Section 2. Wash. Rev.

Code § 70.395.070. Section 5 provides no cause of

action to the Attorney General or Governor. The

district court granted a preliminary injunction against

the enforcement of Section 5, holding that it violates

the doctrine of intergovernmental immunity.

In Whole Woman’s Health v. Jackson, 595 U.S. 30

(2021), a provision of a Texas statute, SB 8, allowed

private citizens to enforce the law’s prohibition on

abortions through the filing of a civil suit. Id. Plaintiffs

filed suit against several defendants, including the

Texas Attorney General, seeking an injunction

against enforcement of the statute. Id. The Supreme

Court held that the Attorney General was not a proper

defendant as to SB 8 because “petitioners d[id] not

direct this Court to any enforcement authority the

attorney general possessed in connection with [SB] 8

that a federal court might enjoin him from exercising.”

Id. at 43. Like SB 8, Section 5 of HB 1470 does not

grant “any enforcement authority” to the Attorney

General or the Governor. See id. Thus, the Attorney

General and the Governor are not proper defendants

as to Section 5.

Because Section 5 provides no cause of action

against either the Attorney General or Governor, we

conclude that the district court erred in reaching the

merits of GEO’s challenge to this section. Rather than

enjoining enforcement of Section 5 by the Attorney

App-31

General and the Governor, the district court should

have dismissed this portion of GEO’s suit.

CONCLUSION

We vacate the district court’s grant of a

preliminary injunction against Sections 2, 3, 5 and 6

of HB 1470. We grant in part the motion to remand

(Dkt. No. 63) to the district court for further

proceedings consistent with this opinion.

VACATED and REMANDED.

App-32

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________

No. 24-2815

________________

THE GEO GROUP, INC.,

Plaintiff-Appellee,

JAY INSLEE, Governor; ROBERT FERGUSON,

Defendants-Appellants.

________________

Filed: Feb. 11, 2026

________________

Before: William A. Fletcher, Ronald M. Gould, and

Jacqueline H. Nguyen, Circuit Judges.

________________

ORDER

________________

The panel unanimously voted to deny appellee’s

petition for panel rehearing. Judge Gould and Judge

Nguyen voted to deny the petition for rehearing en

banc, and Judge Fletcher so recommended.

The full court has been advised of the petition for

rehearing en banc. A judge requested a vote on

whether to rehear the matter en banc. Judge Eric D.

Miller did not participate in the deliberations or vote

in this case. The matter failed to receive a majority of

App-33

votes of the nonrecused active judges in favor of en

banc consideration. Fed. R. App. P. 40.

The petition for panel rehearing and rehearing en

banc (Dkt. No. 75) is DENIED.

App-34

W. FLETCHER, GOULD, and NGUYEN, Circuit

Judges, respecting the denial of rehearing en banc:

Our dissenting colleague has unsuccessfully

sought en banc rehearing in two cases involving the

GEO Group.

The first case involved work performed by civil

detainees in deportation proceedings, held by a forprofit corporation, the GEO Group, in its privately

owned and operated facility located in Tacoma,

Washington. Nwauzor v. GEO Grp., Inc., 127 F.4th

750 (9th Cir. 2025). According to GEO’s own estimate,

eighty-five full-time employees would have been

required to do the work performed by those civil

detainees. Id. at 758. GEO’s contract with the

government allowed it to employ civilian detainees,

but required it to comply with “all applicable federal,

state, and local laws and standards,” including “labor

laws and codes.” Id. at 757.

The district court held, consistent with GEO’s

contract with the government, that GEO was required

to comply with Washington’s minimum wage law and

to pay the state mandated minimum wage to its civil

detainees who performed work on its behalf.

Washington v. GEO Grp., Inc., No. C17-5806RJB,

2021 WL 5824570, at *3 (W.D. Wash. Dec. 8, 2021).

(Our colleague mischaracterizes the district court’s

holding when he writes that GEO was required to pay

an “inflated minimum wage.” Dissent at 7 (emphasis

added)). A different panel of our court affirmed the

district court. Our colleague called the opinion en

banc, and his en banc call failed. Nwauzor v. GEO

Grp., 146 F.4th 1280 (9th Cir. 2025). In his dissent

from our denial of en banc rehearing in the case now

App-35

at issue, our colleague continues to object to that

denial.

The second case is the case now at issue. GEO

Grp. v. Inslee, 151 F.4th 1107 (9th Cir. 2025). This case

involves the conditions of confinement of the civil

detainees held by GEO in its Tacoma facility. GEO’s

privately owned and operated detainment facility

holds civilian detainees pending determination of

their immigration status. Some of the detainees will

eventually be deported because they have no right to

be in this country. A smaller number of the detainees

will eventually be released back into this country

because they have a right to be here. None of the

detainees in GEO’s facility is being held because he or

she has been convicted of, or even charged with, a

crime.

The parties agree that Washington may regulate

comparable detainment facilities in the same manner.

The disputed question is the appropriate comparator.

The government contends that GEO may treat its civil

detainees in the same manner Washington treats

convicted criminals held in its prisons and jails. Id. at

1120. Appellants contend that GEO may not treat its

civil detainees as if they are convicted criminals.

Instead, according to appellants, GEO may treat its

civil detainees in the same manner Washington treats

civil detainees held in two other types of involuntary

confinement—residential treatment facilities for

people with “mental disorders or substance abuse

disorders,” and involuntary civil commitment facilities

that hold individuals, such as mentally ill patients,

against their will. Id. Our panel concluded

unanimously that the appropriate comparators are

App-36

these two other types of involuntary civil confinement

facilities.

There are two important differences between

GEO’s civil detention facility and Washington’s

prisons and jails that make that comparison

inappropriate.

First, detainees in GEO’s Tacoma facility are not

being held because they are serving criminal

sentences or are charged with crimes. Our colleague

appears to suggest otherwise by including in his

dissent a table published by Immigration and

Customs Enforcement that purports to show that

“most immigration-facility detainees nationwide have

either a criminal conviction or a pending criminal

charge.” Dissent at 10. Any such suggestion is wrong.

As we wrote in our opinion, “Detainees at the NWIPC

are awaiting administrative review of their

immigration status. They are civil detainees. They are

not in criminal proceedings.” Nwauzor, 127 F.4th at

757. Their confinement is not punitive. See, e.g.,

Zadvydas v. Davis, 533 U.S. 678, 690 (2001)

(Immigration detention is “civil, not criminal” and

“nonpunitive in purpose and effect.”). By contrast,

individuals in Washington’s prisons and many of those

held in its jails are there because they have been

convicted of crimes. Their conditions of confinement

are, by definition and design, punitive. Second, GEO’s

facility is privately owned and operated. By contrast,

Washington’s prisons and jails are governmentally

owned and operated.

After

concluding

that

the

appropriate

comparators are not Washington’s jails and prisons,

but rather the two types of involuntary civil

App-37

detainment facilities, we remanded to the district

court to make that comparison in the first instance.

Our dissenting colleague contends that it is so

obvious that the appropriate comparator is

Washington’s prisons and jails that this should have

been an “easy” case. Dissent at 10. We disagree with

him as to the appropriate comparator, but we agree

that this is an easy case. We believe that we have

decided it correctly. Our court has appropriately

declined to rehear the case en banc.

App-38

BUMATAY, Circuit Judge, joined by CALLAHAN,

BENNETT, R. NELSON, COLLINS, BRESS,

VANDYKE, and TUNG, Circuit Judges, dissenting

from the denial of rehearing en banc:

We’ve seen this before. Just a few months ago, the

Ninth Circuit ignored the Supremacy Clause of the

Constitution by permitting the State of Washington to

interfere with the federal government’s housing of

aliens in removal proceedings simply because the

government chose to use federal contractors to run its

immigration detention facility. See Nwauzor v. GEO

Grp., Inc., 146 F.4th 1280, 1282 (9th Cir. 2025)

(Bumatay, J., dissenting from the denial of rehearing

en banc). Under the ruling, we let a Washington law

force the federal government’s contractors to classify

its alien detainees as “employees” under state law and

pay them an inflated minimum wage. Id. This law

violated the Supremacy Clause because, at minimum,

it discriminated against the federal government. See

id. at 1285 (Washington’s law “punishes the federal

government for its policy choice to use private

contractors and treats the federal government

differently from state facilities. That is the very

definition of a state affording itself better treatment

than it affords the United States.”) (quoting Nwauzor

v. GEO Grp., Inc., 127 F.4th 750, 774 (9th Cir. 2025)

(Bennett, J., dissenting)). Such a decision was a

“dangerous precedent” allowing “any State [to] impair

any federal policy—no matter how central to the

federal government—so long as the State regulates

federal contractors rather than the federal

government itself.” Id. at 1286.

App-39

This case is merely the latest round in the State

of Washington’s crusade against the federal

government’s use of federal contractors to enforce

immigration policy. See GEO Grp., Inc. v. Inslee, 151

F.4th 1107, 1111 (9th Cir. 2025). The Washington

Legislature imposed a series of state regulations

directed solely at the Northwest Immigration and

Customs Enforcement Processing Center in Tacoma,

Washington (“Northwest ICE Center”). See Second

Substitute House Bill 1470, 68th Leg., Reg. Sess.

(Wash. 2023); Second Substitute House Bill 1232, 69th

Leg., Reg. Sess. (Wash. 2025). The regulations dictate

nearly every facet of how the federal government must

treat alien detainees at the Center—from the

detainees’ right to use their personal belongings, to

the mandatory provision of special diets, to free phone

calls, to a right of “privacy” during personal visits, to

housekeeping. Wash. Rev. Code §§ 70.395.040(1)(a),

(e), 70.395.060(2)(b)-(d). Not only that. Washington

claims a right to enforce these regulations through

unannounced inspections and hefty penalties. See

Wash. Rev. Code §§ 70.395.050(2)(a), 70.395.070(1),

70.395.080. The reason Washington claims to get

away with this? The Northwest ICE Center is run by

a federal contractor—The GEO Group, Inc.

These are no across-the-board state regulations.

Instead, to avoid the fiscal and safety burdens of these

obligations, Washington exempts any of its own

facilities—including state and local detention

facilities, jails, and prisons—from both the regulations

and their enforcement mechanisms. See Wash. Rev.

Code § 70.395.080(6) (“The state and its agencies are

not liable for a violation of this chapter.”). And so,

these regulations apply only to the Northwest ICE

App-40

Center. In effect, what Washington State has told

Washington, D.C., is: “Rules for thee but not for me!”

In the normal course, the discriminatory

exclusion of Washington’s comparable facilities would

doom the law. Whatever else the Supremacy Clause

requires, it prohibits States from targeting the federal

government and its contractors with burdensome

regulation while exempting themselves from its costs.

See United States v. Washington, 596 U.S. 832, 838

(2022) (The Constitution prohibits state laws that

“discriminate against the Federal Government or

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

(simplified)). As we’ve said, “any discriminatory

burden on the federal government is impermissible.”

United States v. California, 921 F.3d 865, 883 (9th Cir.

2019). In determining whether a State engaged in

discrimination, we look to state law’s burdens on

appropriate comparators. See North Dakota v. United

States, 495 U.S. 423, 438 (1990) (“Since a regulation

imposed on one who deals with the Government has

as much potential to obstruct governmental functions

as a regulation imposed on the Government itself, the

Court has required that the regulation be one that is

imposed on some basis unrelated to the object’s status

as a Government contractor or supplier, that is, that

it be imposed equally on other similarly situated

constituents of the State.”). And we’ve already

indicated that the appropriate comparators to federal

immigration detention centers are the State’s “prisons

and detainment facilities.” California, 921 F.3d at 882.

This comparison is obviously right—both

immigration detention facilities and state jails and

prisons detain those accused or convicted of violating

App-41

the law, whether immigration or state criminal law.

Both have comparable concerns for public safety and

ensuring appearances at future proceedings. Congress

has authorized, and in many cases required, the

detention of certain aliens in removal proceedings. See

8 U.S.C. §§ 1225(b)(1)(B)(ii), (b)(2)(A), 1226(a)-(c),

1231(a). Mandatory detention is required for aliens

involved in serious criminal activities, such as

burglary, theft, assault of a law enforcement officer, or

crimes resulting in another’s death or serious bodily

injury. See 8 U.S.C. § 1226(c)(1)(E). Indeed, according

to ICE, most immigration-facility detainees

nationwide have either a criminal conviction or a

pending criminal charge.1

So immigration detention serves two securityrelated goals—“preventing flight” and “protecting the

community.” Zadvydas v. Davis, 533 U.S. 678, 690

(2001). Indeed, “Congress adopted [the detention

provisions] against a backdrop of wholesale failure by

the INS to deal with increasing rates of criminal

activity by aliens.” Demore v. Kim, 538 U.S. 510, 518

(2003). So close are the goals of immigration and

criminal detention that Congress instructed the

1 U.S. Immigr. and Customs Enf’t, Detention FY 2026 YTD

(Feb. 2, 2026), https://www.ice.gov/doclib/detention/FY26_

detentionStats02022026.xlsx [https://perma.cc/B3UC-DGAC].

App-42

government to consider using “existing prison[s],

jail[s], detention center[s], or other comparable

facilit[ies]” before constructing new immigration

detention facilities. See 8 U.S.C. § 1231(g)(2).

So this case should have been easy. By its own

terms, Washington’s new immigration detention

regime doesn’t apply to state detention facilities. It

thus discriminates against the federal government by

“singling out the Federal Government for unfavorable

treatment.” Washington, 596 U.S. at 839. This is an

open-and-shut case of intergovernmental immunity—

as the district court concluded. See GEO Grp., Inc. v.

Inslee, 720 F. Supp. 3d 1029, 1067 (W.D. Wash. 2024).

Unfortunately, we didn’t follow the normal

course. Instead, the panel invents a new set of rules

when it comes to immigration detention centers run

by federal contractors. Rather than looking to the

state’s prisons and detention facilities, the panel

directs the district court to focus myopically on the

smallest subset of inapt comparators—“private

residential treatment facilities and civil commitment

facilities.” Inslee, 151 F.4th at 1119. This is a wholly

unfitting

comparison.

Ignoring

the

obvious

similarities between criminal and immigration

detention, the panel wants to look only at private

sector healthcare facilities, such as mental health and

substance abuse treatment centers. While these

private institutions sometimes detain patients

involuntarily, they simply don’t have the same public

safety concerns as immigration detention centers and

state prisons and jails. And healthcare facilities

involve a focus on medical treatment and

rehabilitation that immigration detention facilities

App-43

lack. Moreover, although the panel would have us

compare the Northwest ICE Center to private

treatment facilities, Washington’s law exempts state

contractors who provide these services. See Wash.

Rev. Code § 70.395.100. In creating this mismatch, the

panel ignores both our circuit precedent and common

sense.

As is almost axiomatic, the power to burden is the

power to destroy. And state destruction of federal

operations is something the Supremacy Clause doesn’t

permit. But that’s the clear intent of Washington’s

laws. Given this, we should have reviewed this case en

banc and affirmed the injunction of the state

regulation. Because the Supremacy Clause forbids

Washington State’s discrimination against federal

operations, I respectfully dissent from the denial of

rehearing en banc.

App-44

Appendix C

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF WASHINGTON

________________

No. C23-5626

________________

THE GEO GROUP, INC.,

Plaintiff,

JAY INSLEE, in his official capacity as the Governor of

the State of Washington; ROBERT FERGUSON, in his

official capacity as Attorney General of the

State of Washington,

Defendants.

________________

Filed: Apr. 15, 2024

________________

ORDER

________________

This matter is before the Court on the State of

Washington’s1 motion for reconsideration, Dkt. 36, of

the Court’s order, Dkt. 35, granting in part and

denying in part the GEO Group Inc’s motion for a

preliminary injunction, Dkt. 8, and granting in part

and denying in part the State’s motion to dismiss, Dkt.

1 The defendants in this matter are Washington’s Governor,

Jay Inslee, and its Attorney General, Bob Ferguson. Each is sued

in his official capacity. Dkt. 1, ¶ 1. For simplicity, the Court refers

to these defendants collectively as “the State.”

App-45

17. Because the State fails to establish a manifest

error in the Court’s prior order, the motion for

reconsideration is denied.

Under this District’s local rules, motions for

reconsideration are disfavored and will ordinarily be

denied absent a showing of (a) manifest error in the

ruling, or (b) facts or legal authority which could not

have been brought to the Court’s attention earlier with

reasonable diligence. Local Rules, W.D. Wash., LCR

7(h)(1). The term “manifest error” is “[a]n error that is

plain and indisputable, and that amounts to a

complete disregard of the controlling law or the

credible evidence in the record.” Black’s Law

Dictionary 622 (9th ed. 2009).

Reconsideration is an “extraordinary remedy, to

be used sparingly in the interests of finality and

conservation of judicial resources.” Kona Enters., Inc.

v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). “[A]

motion for reconsideration should not be granted,

absent highly unusual circumstances, unless the

district court is presented with newly discovered

evidence, committed clear error, or if there is an

intervening change in the controlling law.” Marlyn

Natraceuticals, Inc. v. Mucos Pharma GmbH & Co.,

571 F.3d 873, 880 (9th Cir. 2009). Mere disagreement

with a previous order is an insufficient basis for

reconsideration, and reconsideration may not be based

on evidence and legal arguments that could have been

presented at the time of the challenged decision. Haw.

Stevedores, Inc. v. HT & T Co., 363 F. Supp. 2d 1253,

1269 (D. Haw. 2005). “Whether or not to grant

reconsideration is committed to the sound discretion

of the court.” Navajo Nation v. Confederated Tribes &

App-46

Bands of the Yakama Indian Nation, 331 F.3d 1041,

1046 (9th Cir. 2003).

The State asserts that “the Court erred in looking

beyond the text of HB 1470 to conclude the law

discriminates against the NWIPC.” Dkt. 36 at 22. In

this respect, the State requests the Court to reconsider

its ruling that HB 1470 §§ 2, 3, 5, and 6 violate the

intergovernmental immunity doctrine. GEO responds

that the Court did not err because “a statute that

discriminates in favor of the state and against the

federal government cannot shield itself from the selfincriminating discriminatory statements contained in

its legislative history by asking the Court not to ‘look

behind the curtain.’” Dkt. 38 at 7.

Contrary to the State’s assertion otherwise, the

Court concluded that HB 1470’s text discriminates

against private immigration detention facilities. See

GEO Group, Inc. v. Inslee, ___ F. Supp. 3d ___,

No. C23-5626 BHS, 2024 WL 1012888, at *15 (W.D.

Wash. Mar. 8, 2024). The Court explained that, in HB

1470 § 8, “[t]he legislature expressly stated its intent

for the requirements imposed by HB 1470 to conform

with the Supremacy Clause in light of Newsom.” Id.

Section 8 provides:

States have broad authority to enforce

generally applicable health and safety laws

against

contractors

operating

private

detention facilities within the state. The

ninth circuit reinforced this authority in Geo

Group, Inc. v. Newsom, 50 F.4th 745, 750 (9th

Cir. 2022), stating “[p]rivate contractors do

not stand on the same footing as the federal

government, so states can impose many laws

App-47

on federal contractors that they could not

apply to the federal government itself.”

RCW 70.395.010(1).

The sole issue in Newsom was whether a

California law, Assembly Bill (AB) 32, prohibiting the

operation of private detention facilities was

unconstitutional as applied to privately-operated

immigration detention facilities. Geo Group, Inc. v.

Newsom, 50 F.4th 745, 750-51 (9th Cir. 2022). The

Ninth Circuit held that it was: “Whether analyzed

under intergovernmental immunity or preemption,

California cannot exert this level of control over the

federal government’s detention operations. AB 32

therefore violates the Supremacy Clause.” Id. at 751.

This Court accordingly ruled that “[t]he

legislature’s express reference to Newsom” in HB 1470

§ 8 “strongly indicates that the purpose of [HB 1470]

is to impose conditions specifically on the NWIPC as

the sole private immigration detention facility in the

State.” GEO Group, Inc., ___ F. Supp. 3d ___, No. C235626 BHS, 2024 WL 1012888, at *15. The Court

explained that “[f]urther support for this conclusion is

found in HB 1470 § 10, which expressly excludes

various facilities from HB 1470’s ambit.” Id. This

includes any facility that is:

(1) Providing rehabilitative, counseling,

treatment, mental health, educational, or

medical services to juveniles who are subject

to Title 13 RCW, or similarly applicable

federal law;

(2) Providing evaluation and treatment or

forensic services to a person who has been

civilly detained or is subject to an order of

App-48

commitment by a court pursuant to chapter

10.77, 71.05, 71.09, or 71.34 RCW, or

similarly applicable federal law, including

facilities regulated under chapters 70.41,

71.12, and 71.24 RCW;

(3) Used for the quarantine or isolation of

persons for public health reasons pursuant to

RCW 43.20.050, or similarly applicable

federal law;

(4) Used for work release under chapter

72.65 RCW, or similarly applicable federal

law;

(5) Used

placement;

for

extraordinary

(6) Used for residential

disorder treatment; or

medical

substance

use

(7) Owned and operated by federally

recognized tribes and contracting with a

government.

RCW 70.395.100.

The Court explained that “[t]he exclusion of these

facilities from HB 1470’s requirements begs the

question: What facilities aside from private

immigration detention facilities are subject to HB

1470? The State provides no answer.” GEO Group,

Inc., ___ F. Supp. 3d ___, No. C23-5626 BHS, 2024 WL

1012888, at *15. The State again provides no answer.

It accordingly fails to show a manifest error in the

Court’s ruling that HB 1470’s text applies exclusively

to private immigration detention facilities.

The State next contends that “the Court erred as

a legal matter in relying on United States v. California

App-49

to conclude state prisons and local jails are the proper

comparator.” Dkt. 36 at 4. In that case, the Ninth

Circuit held that those provisions of a state law that

applied to immigration detention facilities and

“duplicate[d] preexisting inspection demands imposed

on state and local detention facilities” likely did not

discriminate against immigration detention facilities.”

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

2019) (emphasis added). This Court interpreted the

California decision as “implicitly reason[ing] that

immigration detention facilities are similarly situated

to state and local detention facilities, such as prisons

and jails.” GEO Group, Inc., ___ F. Supp. 3d ___,

No. C23-5626 BHS, 2024 WL 1012888, at *16. The

State asserts that this amounts to a manifest error

because “[t]he law at issue in California authorized

inspections of all immigration detention facilities,

whether publicly or private operated” whereas “HB

1470 does not extend to the Federal Detention Center

in SeaTac and would not extend to state and local

facilities if they housed immigration detainees (which

they don’t).” Id.

GEO persuasively responds that this argument is

inconsistent with the State’s argument in its motion

to dismiss that “HB 1470 was not discriminatory

because

replicated

‘existing

regulatory

requirements for [Department of Corrections]

facilities, including the provision of basic personal

hygiene items.’” Dkt. 38 at 8 (quoting Dkt. 17 at 23).

GEO also asserts that the Court “correctly rejected the

Defendants’ alternative contention that HB 1470 was

not discriminatory because it largely replicated

minimum health and safety standards found in the

App-50

Washington Administrative Code

residential treatment facilities.” Id.

applicable

The State fails to identify a manifest error in the

Court’s ruling that privately operated immigration

detention facilities are similarly situated to state and

local detention facilities for purposes of applying the

intergovernmental immunity doctrine. In reaching

this conclusion, the Court did not rely solely on

California, 921 F.3d 865. It also relied on Congress’s

express acknowledgment of the similarities between

immigration detention facilities and state and local

detention facilities in 8 U.S.C. § 1231(g)(1)2 and the

plain and ordinary meaning of “detention center,”3

which applies equally to immigration detention

facilities like the NWIPC and other detention facilities

like state prisons or local jails. See GEO Group, Inc.,

___ F. Supp. 3d ___, No. C23-5626 BHS, 2024 WL

1012888, at *16-17.

In any event, as explained in that order, “[t]he

State does not even attempt to explain how

immigration detention facilities like the NWIPC are

similarly situated to residential treatment facilities.”

Id. at 17. In its motion for reconsideration, the State

2 This statute directs the Commissioner of Immigration and

Naturalization to “consider the availability for purchase or lease

of any existing prison, jail, detention center, or other comparable

facility suitable for such use” “[p]rior to initiating any project for

the construction of any new detention facility for the

[Immigration and Naturalization] Service.” 8 U.S.C. § 1231(g)(1)

(emphasis added).

3 “Detention center” is defined as “[a] place where people are

temporarily kept and prevented from escaping, esp[ecially]

people who have entered the country illegally or are thought to

have committed crimes.” Black’s Law Dictionary (11th ed. 2019).

App-51

again does not attempt to explain the similarities

between these facilities. Nor can it. See id. at 17-18.

The State alternatively moves the Court to clarify

its preliminary injunction in three ways. The State

first asks the Court to clarify that the preliminary

injunction does not apply to HB 1470 § 5, which

provides a private right of action to detained persons

aggrieved by violations of HB 1470. This section

provides:

(1) A detained person aggrieved by a

violation of this chapter has a right of action

in superior court and may recover for each

violation as follows:

(a) Against any person who negligently

violates a provision of this chapter, $1,000, or

actual damages, whichever is greater, for

each violation;

(b) Against any person who intentionally or

recklessly violates a provision of this chapter,

$10,000, or actual damages, whichever is

greater, for each violation;

the detained person is the prevailing party;

and

(d) Other relief, including an injunction, as

the court may deem appropriate. Injunctive

relief may be issued without bond in the

discretion of the court, notwithstanding any

other requirement imposed by statute.

(2) Any action under this chapter is barred

unless the action is commenced within three

years after the cause of action accrues.

App-52

(3) For the purposes of this section, “person”

means an owner, operator, contractor,

subcontractor, or employee of a private

detention facility.

(4) The state and its agencies are not liable

for a violation of this chapter.

RCW 70.395.070.

The State contends that “Section 5 does not give

enforcement authority to Attorney General Ferguson

or Governor Inslee—the two Defendants in this action.

Meaning, there is nothing in Section 5 Defendants can

be enjoined from exercising.” Dkt. 36 at 5.

GEO responds that, under HB 1470 § 6, “the

attorney general has the authority to bring actions for

penalties for any ‘failure to comply’ with [HB 1470],

including a failure to comply with HB 1470 Section 5.”

Dkt. 38 at 11. GEO further asserts that, even if the

State “ha[s] no impact on the operation of HB 1470

Section 5 so that no injunction was necessary, the

portion of this Court’s Order holding that HB 1470

Section 5 violates the intergovernmental immunity

doctrine must stand, whether or not any injunction is

entered against state officials or agencies.” Id.

The Court agrees that neither the Governor nor

the Attorney General have enforcement authority

under HB 1470 § 5. That section provides a private

right of action for detained persons aggrieved by a

violation of HB 1470. Nevertheless, GEO correctly

asserts that, because the Court ruled that Section 5 is

unconstitutional, detained persons will be effectively

unable to sustain any claim brought pursuant to

Section 5 unless and until that ruling is reversed.

Additionally, because the Court also ruled that HB

App-53

1470

§§ 2,

(RCW

70.395.040-.050)

are

unconstitutional, detained persons will be unable to

sustain any claim alleging a violation of those sections

under HB 1470 § 5.

The State next asks the Court to clarify that the

preliminary injunction binds only the Governor and

the Attorney General, not the Department of Health

(DOH) or the Department of Labor and Industries

(L&I). Dkt. 36 at 6. The State reiterates that “GEO

only brought suit against Governor Inslee and

Attorney General Ferguson—it has not named other

state agencies such as” DOH and L&I. Id. It contends

that the reason for such a clarification “is to adhere to

the principle that ‘a federal court exercising its

equitable authority may enjoin named defendants

from taking specified unlawful actions. But . . . no

court may ‘lawfully enjoin the world at large’ or

purport to enjoin challenged ‘laws themselves[.]’” Id.

(quoting Whole Woman’s Health v. Jackson, 595 U.S.

30, 44 (2021)).

GEO responds that, “[w]hen an action challenging

a state statute is brought against the governor and

attorney general of the state in their official capacities,

it is an action against the state and its agencies.” Dkt.

38 at 12. It cites to Federal Rule of Civil Procedure

65(d)(2), which provides that an injunction binds not

only the parties but also their “officers, agents,

servants, employees, and attorneys; and . . . other

persons who are in active concert or participation

with” them.

As GEO persuasively asserts, DOH and L&I are

bound by the preliminary injunction under Fed. R.

Civ. P. 65(d)(2) because “[b]oth the secretary of health

App-54

and the director of labor and industries are appointed

by and serve at the pleasure of the governor.” Dkt. 38

at 12; see also American Civil Liberties Union v.

Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999)

(affirming a preliminary injunction under Fed. R. Civ.

P. 65(d) that bound a state’s district attorneys in an

action against the state’s governor and attorney

general). Therefore, DOH and L&I are properly bound

by the preliminary injunction.

The State finally asks the Court to clarify that

“DOH may continue to prepare for rulemaking under

Section 2, short of adopting and enforcing those rules.”

Dkt. 36 at 7. The State asserts that “[t]his preparation

includes complying with requirements imposed by

other laws,” including a law that “requires DOH to

conduct environmental justice assessments when

considering significant agency action.” Id. GEO

responds that “GEO does not read this Court’s Order

as enjoining rulemaking activities ‘short of adopting

and

enforcing

those

rules,’

conducting

environmental justice assessment[s].” Dkt. 38 at 14.

GEO accordingly “does not believe any modification or

clarification is necessary.” Id. The Court agrees that

its order does not enjoin DOH from conducting

rulemaking activities or environmental justice

assessments.

Therefore, it is hereby ORDERED that the State’s

motion for reconsideration, Dkt. 36, is DENIED. In

light of this order, the Court again encourages the

App-55

parties to consult and agree on a resolution to this

case.

Dated this 15th day of April, 2024.

[handwritten: signature]

BENJAMIN H. SETTLE

United

States

District

Judge

App-56

Appendix D

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF WASHINGTON

________________

No. C23-5626

________________

THE GEO GROUP, INC.,

Plaintiff,

JAY INSLEE, in his official capacity as the Governor of

the State of Washington; ROBERT FERGUSON, in his

official capacity as Attorney General of the

State of Washington,

Defendants.

________________

Filed: Mar. 8, 2024

________________

ORDER

________________

This matter is before the Court on the GEO

Group, Inc.’s motion for preliminary injunction,

Dkt. 8, and the State of Washington’s1 motion to

dismiss under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6), Dkt. 17.

1 The defendants in this matter are Washington’s Governor,

Jay Inslee, and its Attorney General, Bob Ferguson. Each is sued

in his official capacity. Dkt. 1, ¶ 1. For simplicity, the Court refers

to these defendants collectively as “the State.”

App-57

In 2023, the Washington legislature enacted

House Bill (HB) 1470, which imposes numerous

requirements on private detention facilities within the

State. Although HB

1470 defines “private detention facility” broadly,

its history and text make clear that it applies to only

the Northwest ICE2 Processing Center (NWIPC)—the

sole immigration detention facility in Washington.

GEO, which contracts with ICE to operate the

NWIPC, claims that HB 1470 violates the Supremacy

Clause and Contract Clause of the United States

Constitution.

The primary issue in this case is whether HB 1470

violates the Supremacy Clause by imposing additional

burdens exclusively on GEO as the operator of an

immigration detention facility. The Supremacy Clause

prohibits such discriminatory regulation, and instead

requires state laws that regulate federal contractors

to be applied equally on similarly situated

constituents of the State.

Most of GEO’s arguments are directed at HB 1470

§ 4, which imposes numerous requirements on the

conditions of confinement at private detention

facilities. This section prohibits the use of solitary

confinement; requires an immediate response to

sexual violence and harassment grievances by

“culturally competent professionals”; mandates that

mental health evaluations occur weekly; requires that

each sleeping room have access to windows, natural

light, and natural air circulation; and mandates, at no

cost

detainees,

access

televisions,

2 Immigration and Customs Enforcement.

App-58

telecommunications services,

computers, and internet.

handheld

radios,

HB 1470 § 4 does not apply to private detention

facilities that operate pursuant to a contract that was

in effect prior to January 1, 2023. GEO and ICE last

modified their contract before that date; they agreed

in January 2021 for their contract to run through

September 2025. Therefore, HB 1470 § 4 does not

currently apply to the NWIPC. And it may never. GEO

fails to establish that ICE will extend its contract for

GEO to operate the NWIPC beyond September 2025.

GEO also fails to establish what the terms of any such

hypothetical contract would be. The Court is therefore

unable to discern whether HB 1470 § 4 will ever be

enforced against GEO as the operator of the NWIPC.

GEO’s challenges to HB 1470 § 4 are, in turn, not

constitutionally ripe and the Court lacks subjectmatter jurisdiction to consider them.

The Court does, however, have subject-matter

jurisdiction to consider GEO’s constitutional

challenges to Sections 2, 3, 5, and 6 of HB 1470. These

sections impose various burdens on the NWIPC that

do not apply to any similarly situated facility in the

State. For instance, HB 1470 § 2 requires the

Washington Department of Health (DOH) to adopt

various rules to ensure that private detention facilities

comply with measurable standards providing,

sanitary, hygienic, and safe conditions to detained

persons. It also authorizes the Washington attorney

general to enforce violations of these rules.

The State claims that HB 1470 § 2 does not

impermissibly discriminate against GEO in violation

of the Supremacy Clause because it simply replicates

App-59

standards that already apply to residential treatment

facilities. The Court disagrees. The Supremacy Clause

requires federal contractors to be treated the same as

similarly situated constituents of the State. Because

residential treatment facilities are not sufficiently

similar to private immigration detention facilities like

the NWIPC, HB 1470 § 2 impermissibly discriminates

against GEO in violation of the Supremacy Clause.

HB 1470 § 3 requires DOH and the Department of

Labor & Industries (L&I) to conduct routine,

unannounced inspections of private detention

facilities. It also requires DOH to adopt rules to ensure

that private detention facilities allow for regular

inspections and comply with standards providing for

sanitary, hygienic, and safe conditions of confinement.

It finally authorizes the Washington attorney general

to enforce violations of the rules adopted by DOH.

Because the State fails to identify any other state law

that imposes burdens of this sort on similarly situated

facilities, HB 1470 § 3 also impermissibly

discriminates against GEO in violation of the

Supremacy Clause.

Finally, HB 1470 §§ 5, 6 subject the NWIPC to

substantial economic burdens for failing to comply

with HB 1470’s mandates. Section 5 creates a private

right of action for detained persons aggrieved by

violations of HB 1470, authorizing them to recover at

least $1,000 per violation against any person who

negligently violates this law, and at least $10,000 per

violation against any person who intentionally or

recklessly violates this law. It also authorizes detained

persons to recover reasonable attorney fees and costs

and to obtain other appropriate relief, including

App-60

injunctive relief. Section 6 authorizes DOH to impose

civil penalties on the operators of private detention

facilities who fail to comply with HB 1470 in the

amount of $1,000 per violation per day. It also

authorizes the Washington attorney general to bring

an action to recover any civil penalties that are not

paid to DOH within 15 days of receipt of notice of the

penalty.

The State again fails to identify any other state

laws that impose burdens of this sort on facilities that

are similarly situated to the NWIPC. Accordingly, HB

1470 §§ 5, 6 also impermissibly discriminate against

GEO in violation of the Supremacy Clause.

Because GEO sufficiently establishes that

Sections 2, 3, 5, and 6 of HB 1470 impermissibly

discriminate against it in violation of the Supremacy

Clause, GEO is entitled to an order preliminarily

enjoining the enforcement of these sections against it

as the operator of the NWIPC. To the extent GEO

claims that any of these sections violate the

Constitution in any other manner, those claims are

not plausible and they are dismissed with prejudice.

BACKGROUND

“The Government of the United States has broad,

undoubted power over the subject of immigration and

the status of aliens.” Arizona v. United States (Arizona

II), 567 U.S. 387, 394 (2012); see also U.S. Const. art I,

§ 8, cl. 4 (granting Congress the power to “establish an

uniform Rule of Naturalization”). “Congress exercises

its authority to regulate the entry, presence, and

removal of noncitizens through the Immigration and

Nationality Act (INA) and other related laws, and ‘has

specified which aliens may be removed from the

App-61

United States and the procedures for doing so.’”

United States v. California, 921 F.3d 865, 973 (9th Cir.

2019) (quoting Arizona II, 567 U.S. at 396).

To this end, “[t]he Attorney General shall arrange

for appropriate places for detention for aliens detained

pending removal or a decision on removal,” which

includes the “purchase or lease of [an] existing prison,

jail, detention center, or other comparable facility

suitable for such use.” 8 U.S.C. § 1231(g); see also id.

§ 1103(a)(11) (permitting agreements with states and

localities “for the necessary construction, physical

renovation, acquisition of equipment, supplies or

materials required to establish acceptable conditions

of confinement and detention”). These statutes

authorize the “use of both federal facilities and

nonfederal facilities with which the federal

government contracts.” California, 921 F.3d at 882 n.7

(citing 8 U.S.C. §§ 1231(g), 1103(a)(11)).

The Department of Homeland Security (DHS),

through ICE, contracted with GEO to operate the

NWIPC—a privately-operated immigration detention

facility in Tacoma, Washington. ICE and GEO

executed the contract “on September 24, 2015,

effective September 28, 2015, for a base period of one

year.” Dkt. 1, ¶ 50. “To extend beyond that period, the

contract originally had nine options of one year each

and one half-year option.” Id. ICE and GEO exercised

those options several times. Id. ¶ 51. On January 29,

2021, ICE and GEO modified the contract by

“removing remaining unexercised option years, and

establishing instead a five-year performance period

running from September 28, 2020, through September

27, 2025.” Id.

App-62

This is not the first time Washington has sought

to regulate the use of private immigration facilities in

the State, and it is not the first time GEO has sued to

enjoin such efforts. In 2021, the Washington

legislature passed Engrossed House Bill (EHB) 1090

(codified as RCW 70.395.030), which generally

provides that “no person, business, or

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