GEO Grp., Inc. v. Newsom

15 F.4th 919

The GEO GROUP, INC., Plaintiff-Appellant,

and

United States of America, Plaintiff,

v.Gavin NEWSOM, in his official capacity as Governor of the State of California; Rob Bonta, in his official capacity as Attorney General of the State of California, Defendants-Appellees,andState of California, Defendant.

United States of America, Plaintiff-Appellant,

and

The GEO Group, Inc., Plaintiff,

v.Gavin Newsom, in his official capacity as Governor of the State of California; Rob Bonta, in his official capacity as Attorney General of the State of California; State of California, Defendants-Appellees.

No. 20-56172

No. 20-56304

United States Court of Appeals, Ninth Circuit, FOR PUBLICATION.

Argued and Submitted June 7, 2021 Pasadena, California

Filed October 5, 2021

Michael W. Kirk (argued), Charles J. Cooper, and Steven J. Lindsay, Cooper & Kirk PLLC, Washington, D.C.; Michael B. McClellan, Newmeyer & Dillion LLP, Newport Beach, California; Michael W. Battin, Navigato & Battin LLP, San Diego, California; for Plaintiff-Appellant The Geo Group, Inc.

Mark B. Stern (argued), Daniel Tenny, and Katherine Twomey Allen, Appellate Staff; Randy S. Grossman, Acting United States Attorney; Brian M. Boynton, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Plaintiff-Appellant United States of America.

Gabrielle D. Boutin (argued), Deputy Attorney General; Anthony R. Hakl, Supervising Deputy Attorney General; Thomas S. Patterson, Senior Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, Sacramento, California; for Defendants-Appellees Gavin Newsom, Rob Bonta, and State of California.

Jordan Wells (argued) and Michael Kaufman, American Civil Liberties Union Foundation of Southern California, Los Angeles, California; Mark Fleming, National Immigrant Justice Center, Chicago, Illinois; Mary Van Houten Harper, National Immigrant Justice Center, Washington, D.C.; Eunice Hyunhye Cho, American Civil Liberties Union National Prison Project, Washington, D.C.; Vasudha Talla and Sean Riordan, American Civil Liberties Union Foundation of Northern California, San Francisco, California; Bardis Vakili and Monika Y. Langarica, American Civil Liberties Union Foundation of San Diego & Imperial Counties, San Diego, California; for Amici Curiae National Immigrant Justice Center, American Civil Liberties Union (ACLU), ACLU of Southern California, ACLU of San Diego & Imperial Counties, and ACLU of Northern California.

Steven J. Wells, Alex P. Hontos, and Timothy J. Droske, Dorsey & Whitney LLP, Minneapolis, Minnesota, for Amicus Curiae Management & Training Corporation.

Sayoni Maitra and Jaime Crook, Center for Gender & Refugee Studies, UC Hastings College of Law, San Francisco, California; Lisa Knox, California Collaborative for Immigrant Justice, San Francisco, California; Jaclyn Gonzalez and Hamid Yazdan Panah, Immigrant Defense Advocates, El Sobrante, California; Alison Pennington, Immigrant Legal Defense, Oakland, California; for Amici Curiae Center for Gender & Refugee Studies, California Collaborative for Immigrant Justice, Immigrant Defense Advocates, and Immigrant Legal Defense.

Jason R. Litt, Rebecca G. Powell, Garen N. Bostanian, and Anna J. Goodman, Horvitz & Levy LLP, Burbank, California, for Amicus Curiae Human Impact Partners.

Sarah P. Alexander, Constantine Cannon LLP, San Francisco, California, for Amici Curiae Immigrant Legal Resource Center, Human Rights Watch, and Freedom for Immigrants.

Before: Mary H. Murguia, Bridget S. Bade, and Kenneth K. Lee, Circuit Judges.

Dissent by Judge Murguia

LEE, Circuit Judge:

In 2019, California Governor Gavin Newsom signed a bill, AB 32, that phases out all private detention facilities within the state. But because of seasonal and other fluctuations in immigration, the United States Immigration and Customs Enforcement (ICE) relies exclusively on private detention centers in California. California's law would thus compel the United States to shutter all ICE detention centers within the state. In contrast, AB 32 carves out many exceptions for the state's various private detention centers.

The United States—along with The GEO Group, Inc., a company operating two of the private immigration detention centers—sued California and sought a preliminary injunction, arguing that AB 32 conflicts with federal law and violates intergovernmental immunity. The district court ruled largely in favor of California, holding that the well-being of detainees falls within a state's traditional police powers. We disagree: California is not simply exercising its traditional police powers, but rather impeding federal immigration policy.

Under our preemption principles, states may not enact laws that hinder "the accomplishment and execution of the full purposes and objectives of Congress." Hughes v. Talen Energy Mktg., LLC , 578 U.S. 150, 136 S. Ct. 1288, 1297, 194 L.Ed.2d 414 (2016). Immigration—in particular, the detention of undocumented immigrants and those slated for removal—falls within the core of exclusive federal powers. And Congress has given the U.S. Department of Homeland Security (DHS) Secretary the statutory authority to contract with private detention facilities. AB 32, however, intrudes into the federal sphere of authority by barring the Secretary from exercising his or her statutory power.

California's law also does not pass muster under the doctrine of intergovernmental immunity, which prevents states from directly regulating or discriminating against the federal government. California has discriminated against the United States because AB 32 provides certain exemptions for state agencies without offering comparable ones for the federal government.

We reverse the district court's orders (i) granting California's motions to dismiss and for judgment on the pleadings and (ii) denying the United States’ and GEO's motion for a preliminary injunction.

BACKGROUND

I. California Phases Out Private Detention Facilities in the State.

In 2019, then-Acting DHS Secretary Matthew Albence told the House of Representatives Committee on Appropriations that the "influx at the border has especially strained ICE's detention resources." He reported that the number of new detainees had surged 79% in a single year. The federal government houses these detainees in detention facilities until they are either removed from the country or released.

ICE, however, does not build or operate any immigration detention facilities because of "significant fluctuations in the number and location of removable aliens apprehended by DHS," according to the federal government. To avoid spending large sums of money on government-owned buildings that may remain vacant if immigration wanes, ICE relies only on privately operated detention facilities, including in California. GEO contracted with the federal government in 2019 to operate two such facilities in California.

Meanwhile, not too long after Acting Secretary Albence testified before Congress, Governor Gavin Newsom signed AB 32 into law, which bans private detention facilities in California within this decade. The author of AB 32 explained that the bill provides "a general ban of for-profit, private detention facilities in California—including facilities used for immigration detention." Sen. Judiciary Comm., Bill Analysis of A.B. 32, 2019–2020 Reg. Sess. (Cal. 2019). "We've all seen the current humanitarian crisis play out along the southern border," he continued. Id. "No human being deserves to be held in the horrific conditions we've been seeing in these for-profit, private facilities." Id.

AB 32 has three sections:

Section 1: It amends the California Penal Code by adding § 5003.1, which bans California Department of Corrections and Rehabilitation from entering or renewing a contract with a private, for-profit prison facility located "in or outside of the state." Cal. Penal Code § 5003.1(a) – (b). But the law provides an exception for California's private prisons "in order to comply with the requirements of any court-ordered population cap." Id. § 5003.1(e).

Section 2: It introduces §§ 9500 – 9505 to the California Penal Code. First, § 9500 provides definitions:

(a) "Detention facility" means any facility in which persons are incarcerated or otherwise involuntarily confined for purposes of execution of a punitive sentence imposed by a court or detention pending a trial, hearing, or other judicial or administrative proceeding.

(b) "Private detention facility" means a detention facility that is operated by a private, nongovernmental, for-profit entity, and operating pursuant to a contract or agreement with a governmental entity.

Id. § 9500 (emphasis added).

Then § 9501 establishes the general rule that "a person shall not operate a private detention facility within the state." Id. § 9501. The remaining provisions specify exemptions to the general rule. Most of § 9502's exemptions apply only to certain facilities operating under California state law. See id. § 9502(a)–(b), (d), (f)–(g). Two of the exemptions are facially neutral, but one of them exempts school detention centers, which the federal government does not operate. See id. § 9502(c), (e). Finally, § 9505 provides two more exemptions.

First, a "private detention facility that is operating pursuant to a valid contract with a governmental entity that was in effect before January 1, 2020, for the duration of that contract, not to include any extensions made to or authorized by that contract ." Id. § 9505(a) (emphasis added). ICE entered into the contracts before 2020, so they fall within the safe-harbor provision. At the same time, all of ICE's contracts include several extensions, which fall outside this exception. Second, § 9505 exempts a private detention facility renewed under § 5003.1(e). As noted above, § 5003.1(e) provides an exception to comply with court-ordered population caps in state prison.

Section 3: It provides that the act's provisions are severable.

II....