Geo Group v. Inslee - Ninth Circuit Denies Rehearing

FOR PUBLICAT ION UNITE D STATES COURT OF APPE ALS FOR THE NI NTH CIR CUIT THE GEO GROUP, INC., Plaintiff - Appellee, v. JAY INSLEE, Gove rnor; R OBERT FERGUSON, Defendants - Appellants. No. 24-2815 D.C. No. 3:23- cv -05626- BHS O RDER Filed February 11, 2026 Before: Will iam A. Fletcher, Ronald M. Gould, and Jacqueline H. Nguyen, Circuit Judges. Order; Statement by Judges W. Fletcher, Gould, and Nguyen; Dissent by Judge Bumatay

2 T HE G EO G R OUP V. I NSLEE SUMMARY * Intergo vernm ental I mmu nity / P reempti on The panel denied a petiti on for panel rehe aring and reheari ng en banc in a case in which the pane l (1) vacat ed the district court’s grant of a preliminary injunction sought by GEO Group, Inc. against Washington’s Governor and Attorney General, preventing the enforcement of S ections 2, 3, 5, and 6 of House B ill 1470, a Washington law that protects the health and safety of c ivil detainees held in the Northwest Immigration and Customs Enforcement Processing Center; and (2) granted in par t GEO’s motion to remand to the district court for further proceedings. Respecting the denial of rehearing en banc, Judges W. Fletcher, Gould and Nguyen wrote that the panel correctly decided that the appropriate compa rators to GEO’s civil detention facility are not Washington’s jails and pr isons, but rather the two types of involuntary civil detainment facilitie s — residentia l treatment facilities for people with mental and substance abuse disorders, and i nvoluntary civil commitment f acilities tha t hold individ uals, such as mentally ill patients. Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges Callahan, Bennett, R. Nelson, Collins, Bress, VanDyke and Tung, wrote that the court should have reviewed this case en ba nc and affirmed the district court’s injunction of the state regulation. The appropriate comparators to federa l immigration detention * This s ummary consti tutes no par t of the opi nion of the c ourt. It ha s been pre pared by c ourt staff for the convenie nce of t he reader.

T HE G EO G R OUP V. I NSLEE 3 centers are th e St ate’s pris ons and d etai nment f acil ities. B y its own terms, Washington’s new immigration detention regime does not apply to state detention facili ties, and discriminates against the federal government by si ngling out the feder al gover nmen t for unfavora ble treatment. The Supremacy Clause forbids Washington’s discrimination against federal operations. ORDER The panel unanimously voted to deny appellee’s p etition 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 fai led to recei ve a m ajority of 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.

4 T HE G EO G R OUP V. I NSLEE W. FLETCHER, GOUL D, and NGUYEN, Circu it Judges, respecti ng the d enial of reheari ng 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 proc eedings, held by a for - profit 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 C ir. 2025). According to GEO’s o wn estimate, e ighty - five full - time employees would have been re quired to do the work pe rformed by those civil detainees. Id. at 758. GEO’s contract with the government allowed it to employ civilian detai nees, but requir ed it to comply w ith “all applicab le federal, state, a nd local laws and standards,” including “labor laws a nd 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 a nd to pay the state mandate d minimum wage to its c ivil detainee s who performed work on its behalf. Washington v. GEO Grp., Inc., No. C17 - 5806RJB, 2021 WL 5824570, at *3 (W.D. Wash. D ec. 8, 2021). (Our coll eague mis charac terizes t he district court’s holding when he writes that GEO was required to pay an “ inflate d minimum wag e.” Dissen t at 7 (emphasis added)). A di fferent panel of our court affirmed the district court. Our colleague called the opinion en banc, and his en ban c call fai led. Nwauzor v. GEO Grp., 146 F.4th 1280 (9th Cir. 2025). In his dis sent from our denial of en banc rehearing in the case now a t issue, our colleague continues to object to that denial.

T HE G EO G R OUP V. I NSLEE 5 The se cond cas e is the c ase now at is sue. GEO Gr p. 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 Ta coma fac ility. GEO’s pr ivately o wned and operated detainment facility holds c ivilian detainees pending determin ation of their immigration status. Some of the detainees wil l event ually be depo rted b ecaus e they have no right to be in this country. A smaller number of the detainees will ev entuall y be releas ed back i nto t h is 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 charg ed wit h, a cri me. The parti es agree t hat Washing ton may r egulate comparabl e det ainment faci liti es in t he sam e mann er. Th e disputed question is the appropriate comparator. The governme nt contends that GEO ma y treat its civil deta inees in the same manner Washi ngton treats c onvicted criminals held in its prisons and jails. Id. at 1120. Appellants contend that GEO ma y not treat its civil de tainees a s if they are convicted criminals. I nstead, according to appellants, GEO may treat its ci vil det ainees in th e same m anner W ashi ngt on treats civil detainees held in two other t ypes of involuntary confinement— residen tial treatmen t facilities for people with “mental disorders or substance abuse disorders,” a nd involuntar y civil commitme nt facilities that hold individua ls, such as m en tally ill pa tients, ag ainst their wil l. Id. Our panel concluded unanimously that the appropriate comparators are these two other types of involuntary civil confinement facilitie s. There are two i mportan t di fferences betw een GEO’s civil detention facility and Washington’s prisons and jails that make that comparison inappropriate.

6 T HE G EO G R OUP V. I NSLEE First, d etainees in GEO’ s Tacoma faci lity are not bei ng held becau se th ey are s erving crimin al senten ces or are charged with cri mes. Our coll eague ap pears t o su ggest otherwise by including in his dissent a table published by Immigration and Customs Enforceme nt that purports to show that “ most immigr ation - fac ility detainee s nationwide have either a criminal conviction or a pending criminal charge. ” Dissen t at 10. Any such suggestion is wrong. As we wrote in our opinion, “ Detainees at the NWIPC are awaiting a dministrative re view of their immigration status. They ar e civil d etain ees. They are not i n crimi nal proceedings.” Nwauzor, 127 F.4th at 757. Their confinement is not punitive. See, e.g., Zadvydas v. Da vis, 533 U.S. 678, 690 (2001) (Immigra tion 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 jail s are ther e becaus e they h ave be en 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 detainment facilities, we remanded to the district co urt to make that co mparison in the f irst instance. Our dissenting colleague contends that it is so obvious that the appropriate comparator is Washington’s prisons and jails that t his sh ould hav e been an “easy” case. Diss ent at 10. We disagree with him as to the appropriate comparator, but we agr ee that this i s an easy c ase. W e believ e that we have decided it cor rectl y. Our court has appr opriately declined to reh ear the case en b anc.

T HE G EO G R OUP V. I NSLEE 7 BUMATAY, Circuit Judge, joined by CALLAHAN, BENNETT, R. NELS ON, COLL INS, BRES S, VANDYKE, and TUNG, Circuit Judges, dissenting from the denial of reheari ng en ban c: We’ve seen this before. Just a few months ago, the Ninth Circuit ignored the Supremac y Clause of the Constitution by permitting the State of Washing ton to interfere with the federal government’s housing of aliens in removal proceedings simply because the government chose to use federal c ontractors to run its immigratio n detention fa cility. 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 Washingt o n law for ce the f eder al gov ernment ’s con tracto rs to classi fy its alien det aine es as “em ployees ” und er state l aw and pay th em an infla ted minimum wage. Id. This law violated the Supremac y Clause because, at minimum, it dis criminate d against the federa l government. See i d. at 1285 (Washington’s law “punishes the federal government for its policy choice to use private c ontractors and treats the federal governme nt differently f rom state fac ilities. That i s the very definition o f a state a ffording itself be tter trea tment than it affords the United States.”) (quoting Nwauzor v. GEO Grp., Inc., 127 F.4th 750, 7 74 (9th Cir. 2025) (Bennett, J., dissenting)). Such a decision was a “ dangerous precedent” allowing “ any State [to] impair any f ederal policy —no matter h ow cent ral to t he federal governm ent — so long as the State r egulates federal c ontr actors rath er th an the feder al government itself.” Id. at 1286. This cas e is merel y the lat est rou nd in the S tate of Washing ton’s cru sade ag ains t the fed eral go vernm ent’s us e of federal contrac tors to enforce immigration policy. See

8 T HE G EO G R OUP V. I NSLEE 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 North west Immigratio n and Customs Enforcement Processing Center in Tac oma, Washington (“Northwest ICE Center ”). See Second Substitute House Bill 1470, 68th Leg., Reg. Sess. (Wash. 2023); Second Substitute House Bill 1232, 69th L eg., Reg. Sess. (Wash. 2025). The regulations di ctate nearly every facet o f how t he fede ral gov ernm ent mus t treat alien detainees at the C enter — from the detainees’ ri ght to use their personal belongings, to the m andatory provision of special diets, to free phone calls, to a right of “privacy” during personal visits, to housekeeping. W ash. 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 Wa shington claims to get away w ith this? The Northwest ICE Center is run by a federal contract or —The GEO Group, Inc. These are no a cross -the - board state regulations. Instead, to avoid the fiscal and safe ty burdens of these obligations, Washington exempts any of its own facilities —including state an d local detention f acilities, jails, and prisons — from both the regulations and their enforcement mechan isms. 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 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 exclus ion of Washington’s comparable facilities would doom the law. Whatever else the Supremacy Clause requires, it prohibits

T HE G EO G R OUP V. I NSLEE 9 States from targeting the fede ral government and its contractors with burdensome regulation while exempting themselve s from its costs. See United States v. W ashington, 596 U.S. 832, 838 (2022) (The Constituti on prohibits state laws that “ discriminate against th e Federal Government o r those with w hom it deals (e.g., c ontractors)” (sim plified)). As we’ve sai d, “ any discriminatory burden on the fede ral governme nt is impermissible.” United States v. Cali fornia, 921 F.3d 865, 883 (9th Cir. 2019). In determining whether a State e ngaged 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 Governm ent contractor or supplier, that is, that it be imposed equally on other similarly situa ted constituen ts of the State.”). A nd we’ ve already indicated that the appropriate comparators to federal immigration de tention c enters ar e the State’ s “prisons and detainme nt facilities.” California, 921 F.3d at 882. This comparison is obviously right — both i mmigration detention f acilities an d state jails an d prisons det ain those accused or convicted of violating the law, whether immigration or state crimina l law. Both hav e compara ble concerns for public safety and ensuring appear ances 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

10 T HE G EO G R OUP V. I NSLEE crimes resulting in another’s death or serious bodily injury. See 8 U.S.C. § 1226(c)(1)(E). Indeed, ac cordin g to I CE, most immigration - facility deta inees nationwide have either a criminal conviction or a pending criminal charge. 1 So immigration de tention serv es two security - related 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 increa sing rates of criminal ac tivity 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 government to consider using “existing prison[s], jail [s], detention center[s], or other comparable facilit[ies]” before construc ting new immigra tion detention f acilities. See 8 U.S.C. § 1231(g)(2). So this case should have been ea sy. By its own terms, Washington’s new immigration detention regime doesn’ t apply to sta te detention f acilities. I t thus discrimina tes against the federal government by “singling out the F ederal Government for unfavorable treatment.” Washington, 596 U.S. at 839. This is an open - and - shut cas e of intergove rnmental immunity — as th e district cou rt 1 U.S. Immi gr. and C ustoms Enf’t, Dete ntion FY 2026 YT D (Feb. 2, 2026), https: //www. ice.gov/docl ib/det ention/F Y26_detentio nStat s02022026. xl sx [https://p erma.cc /B3UC - DGAC].

T HE G EO G R OUP V. I NSLEE 11 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 fed eral contractors. Rather than looking to the state’s p risons and detention facilitie s, the panel d irects the dis trict court to f ocus myopically on the smallest subset of inapt comparators — “priva te residentia l treatment f acilities and c ivil commitment f acilities.” Inslee, 151 F.4th at 1119. This is a wholly unfitting comparison. I gnoring the obvious si milarities be tween cr iminal and immigration d etention, the panel wants to look only at private sector healthcare facilit ies, s uch as ment al healt h and su bstance abuse treatme nt centers. While these priv ate institutions sometimes detain patients involuntarily, they simply don’t have the s ame publ ic saf ety con cerns as immi gratio n detention centers and state prisons and jails. And healthcare facilit ies in volve a focu s on medi cal t reat ment an d rehab ilitation that immig ration deten tion facilities lack. Moreov er, although the panel would have us compare the Northwe st ICE Center to private tre atment fac ilities, Washington’s law exempts state contractors who pr ovide these ser vices. See Wash. Rev. Code § 70.395.100. In creating this mismatch, the panel ignores both our circuit preceden t and com mon s ense. As is almost axiomatic, the power to burden is the power to destroy. And state destruction of fe deral operations is something the Supremacy Clause doesn’t permit. But that’s the clear intent of Washington’s laws. Given this, we should have rev iewed this c ase en banc and affirmed the injunction of the state regulation. Because the Supremacy Clause forbids Washington State’s discr imination against federal

12 T HE G EO G R OUP V. I NSLEE operations, I respectfully dissent from the denial of rehearing en banc.