GEO Group Inc v. Inslee

• Court: District Court, W.D. Washington
• Decided: November 16, 2023
• Docket: 3:21-cv-05313
• Status: Unknown

Opinion

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3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 THE GEO GROUP, INC., CASE NO. 3:21-cv-05313-BHS 8 Plaintiff, ORDER 9 v. 10 JAY INSLEE, in his official capacity as the Governor of the State of Washington; 11 and BOB FERGUSON, in his official capacity as the Attorney General of the 12 State of Washington, 13 Defendants. 14 This matter is before the Court on the GEO Group, Inc.’s motion for summary 15 judgment, Dkt. 71, and the State of Washington’s1 cross-motion for summary judgment, 16 Dkt. 72. 17 Pursuant to a contract with the United States Immigration and Customs 18 Enforcement (ICE), GEO operates the Northwest ICE Processing Center (NWIPC)—a 19 20 21 1 The defendants in this matter are Jay Inslee and Bob Ferguson, who are sued in their official capacities as Washington’s Governor and Attorney General, respectively. Dkt. 1, ¶ 1. For 22 simplicity, the Court refers to these defendants collectively as “the State of Washington.” 1 private immigration detention facility located in Tacoma, Washington. GEO seeks a 2 judgment declaring that RCW 70.395.030—a statute that generally prohibits the

3 operation of private detention facilities in Washington—is unconstitutional as applied to 4 GEO in its operation of the NWIPC or any other detention facilities that it may operate 5 for ICE in the future. GEO also seeks to permanently enjoin the enforcement of this 6 statute against GEO in its operation of any such facilities. 7 Although the State initially disputed GEO’s arguments, it now concedes that, 8 under the Ninth Circuit’s intervening decision in GEO Group, Inc. v. Newsom, 50 F.4th

9 745 (9th Cir. 2022), RCW 70.395.030 is unconstitutional as applied to the NWIPC. The 10 State has accordingly committed to not enforce this statute against the NWIPC “as long 11 as Newsom remains the law of the Ninth Circuit and as long as The GEO Group operates 12 the NWIPC exclusively pursuant to a contract with ICE.” Dkt. 65 at 2. The State asserts 13 that, given this intervening caselaw and its resulting change in position, this case should

14 be dismissed either for lack of standing or as moot. 15 The Court agrees that the State’s change in position renders this case moot. 16 Therefore, the State’s cross-motion for summary judgment is granted and GEO’s motion 17 for summary judgment is denied. 18 I. BACKGROUND

19 In 2021, the Washington Legislature passed Engrossed House Bill 1090 (now 20 codified as RCW 70.395.030), which generally provides that “no person, business, or 21 state or local governmental entity shall operate a private detention facility within the state 22 or utilize a contract with a private detention facility within the state.” RCW 1 70.395.030(1). The statute contains exceptions to this prohibition, see RCW 2 70.395.030(3)(a)–(h), but none of the enumerated exceptions apply to privately-operated

3 immigration detention facilities like the NWIPC. 4 Subsection (2) of the statute provides that “[a] private detention facility that is 5 operating pursuant to a valid contract with a governmental entity that was in effect prior 6 to January 1, 2021, may remain in operation for the duration of that contract, not to 7 include any extensions or modifications made to, or authorized by, that contract.” RCW 8 70.395.030(2). The current contract between GEO and ICE was executed “on September

9 24, 2015, effective September 28, 2015, for a base period of one year.” Dkt. 1, ¶ 52. “To 10 extend beyond that period, the contract originally had nine options of one year each and 11 one half-year option.” Id. “ICE exercised its option five times, most recently on May 19, 12 2020, to extend the contract through September 27, 2021.” Id. ¶ 53. Thus, under 13 subsection (2), the earliest the State could have enforced RCW 70.395.030 against the

14 NWIPC was when that option expired on September 28, 2021.2 15 In April 2021, before RCW 70.395.030 could even be enforced against the 16 NWIPC under the statute’s own terms, GEO sued, claiming that the statute, as applied to 17 GEO’s operation of the NWIPC, was preempted by federal law and otherwise violated 18 the Supremacy Clause and Contract Clause of the United States Constitution. Dkt. 1, ¶¶

19 63–89. GEO seeks (1) a declaratory judgment “that Engrossed House Bill 1090 violates 20

21 2 On January 29, 2021, “ICE and GEO modified the contract, removing remaining unexercised option years, and establishing instead a five-year performance period running from 22 September 28, 2020, through September 27, 2025.” Dkt. 1, ¶ 53. 1 the Supremacy Clause and the Contracts Clause of the United States Constitution and is 2 unconstitutional as applied to GEO in its operation of detention facilities for ICE,” id. at

3 17, and (2) an injunction “[p]reliminarily and permanently enjoining [Governor Inslee 4 and Attorney General Ferguson], as well as their successors, agents, employees, and all 5 those under their supervision, from enforcing, whether prospectively or retroactively, 6 Engrossed House Bill 1090 against GEO in its operation of detention facilities for ICE.” 7 Id. 8 GEO also moved for a preliminary injunction. Dkt. 8. The State opposed that

9 motion, Dkt. 29, and moved to dismiss all of GEO’s claims, asserting that RCW 10 70.395.030 was constitutional as applied to the NWIPC. Dkt. 28. The State also filed two 11 counterclaims against GEO, claiming that GEO’s continued operation of the NWIPC 12 after September 27, 2021, violated both RCW 70.395.030 and Washington’s Consumer 13 Protection Act (CPA). Dkt. 55, ¶¶ 24–34. The State sought (1) a declaratory judgment

14 that GEO’s continued operation of the NWIPC violated these laws, (2) a permanent 15 injunction enjoining GEO from operating the NWIPC, and (3) civil penalties and attorney 16 fees and costs under the CPA. Id. ¶¶ 35–43. 17 The parties stipulated to stay these proceedings until after the Ninth Circuit 18 resolved a related case, GEO Group, Inc. v. Newsom, No. 20-56172, in which GEO and

19 the United States challenged the constitutionality of a similar California statute. See Dkt. 20 57. The Court stayed this case until the Ninth Circuit issued its mandate in Newsom. 21 The California statute, Assembly Bill (AB) 32, generally states that “a person shall 22 not operate a private detention facility within [California].” Cal. Penal Code § 9501. In 1 Newsom, GEO and the United States sought to enjoin the enforcement of AB 32 against 2 private detention facilities operated pursuant to a contract with ICE.3 50 F.4th 745, 752

3 (9th Cir. 2022) (en banc). The district court in that case “dismissed the United States and 4 GEO’s claims as to ICE-contracted facilities and denied the motion for a preliminary 5 injunction as to those facilities because it found no likelihood of success on the merits.” 6 Id. 7 The Ninth Circuit vacated the district court’s order, “hold[ing] that appellants are 8 likely to prevail on their claim that AB 32 violates the Supremacy Clause as to ICE-

9 contracted facilities.” Id. at 763. The court reasoned that, as applied to such facilities, 10 “AB 32 would override the federal government’s decision, pursuant to discretion 11 conferred by Congress, to use private contractors to run its immigration detention 12 facilities.” Id. at 750–51. The court explained, “Whether analyzed under 13 intergovernmental immunity or preemption, California cannot exert this level of control

14 over the federal government’s detention operations.” Id. at 751. The Ninth Circuit 15 accordingly remanded the cause to the district court to consider the remaining factors 16 relevant to the issuance of a preliminary injunction. Id. at 763. 17 After the Ninth Circuit issued its mandate in Newsom, GEO and the State agreed 18 to extend the stay in this matter pending the conclusion of Newsom on remand. Dkt. 61.

19 The parties in Newsom ultimately stipulated to the entry of a final judgment and 20

21 3 In that case, GEO and the United States also moved for, and the district court granted, “preliminary injunctive relief as to facilities under contract with the United States Marshals 22 Service.” Newsom, 50 F.4th at 752, n.2. California did not appeal that decision. Id. 1 permanent injunction, see Dkts. 63, which essentially (1) declared AB 32 to be 2 unconstitutional as applied to any person who operates a private detention facility

3 pursuant to a contract with ICE or the U.S. Marshals Service; and (2) permanently 4 enjoined the enforcement of AB 32 against any such persons. Dkt. 69-3. 5 The State subsequently filed a “notice and stipulation of enforcement position,” 6 conceding that “[t]he Ninth Circuit’s decision in GEO Group, Inc. v. Newsom, 50 F.4th 7 745, 763 (2022) (en banc), forecloses [it] from enforcing RCW 70.395.030 against GEO 8 for operating NWIPC as an ‘ICE-contracted facility[y].’” Dkt. 65 at 2. The State also

9 “stipulate[d] that [it] will not enforce RCW 70.395.030 against GEO for its operation of 10 the NWIPC” “as long as Newsom remains the law of the Ninth Circuit and as long as The 11 GEO Group operates the NWIPC exclusively pursuant to a contract with ICE.” Id. The 12 State also voluntarily dismissed with prejudice its counterclaims against GEO. Dkt. 68. 13 GEO now moves for summary judgment, asserting that it is entitled to the entry of

14 a declaratory judgment and permanent injunction like the one entered by the district court 15 in Newsom. Dkt. 71. The State opposes this motion and, in a cross-motion for summary 16 judgment, contends that its “notice and stipulation of enforcement position” both divests 17 GEO of standing and moots this case. Dkt. 72. 18 The parties’ arguments are addressed below.

19 II. DISCUSSION 20 The first issue is whether, at this point in the proceedings, the dispute should be 21 analyzed for lack of standing or for mootness. The State assumes that it should be 22 analyzed for both. Dkt. 72 at 12–21. GEO responds that “[i]t is blackletter law that a 1 changed circumstance after the outset of a suit that allegedly affects the justiciability of 2 the plaintiff’s claim is analyzed under [the] mootness doctrine, not standing.” Dkt. 74 at

3 7. GEO argues that “[t]his distinction is not academic” because, if analyzed for mootness, 4 the State bears “an exceedingly heavy burden to show that a unilateral, voluntary 5 cessation of unlawful conduct means this Court can no longer enter any meaningful 6 relief.” Id. The State retorts that “GEO is wrong” because “‘[t]he party asserting federal 7 jurisdiction’ bears the burden to establish standing ‘at every stage of the litigation.’” Dkt. 8 75 at 6 (quoting Krottner v. Starbucks Corp., 628 F.3d 1139, 1141 (9th Cir. 2010)).

9 “Article III of the United States Constitution limits federal court jurisdiction to 10 ‘actual, ongoing cases or controversies.’” Wolfson v. Brammer, 616 F.3d 1045, 1053 (9th 11 Cir. 2010) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)). Accordingly, 12 “[a] case or controversy must exist at all stages of review, not just at the time the action is 13 filed.” Wolfson, 616 F.3d at 1053 (citing Alvarez v. Smith, 558 U.S. 87 (2009)). The “case

14 or controversy” clause requires, among other things, that a plaintiff have standing, that 15 the plaintiff’s claims be ripe for adjudication, and that the plaintiff’s claims not be moot. 16 See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006). 17 To have standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that 18 is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be

19 redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 20 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). “The 21 existence of standing turns on the facts as they existed at the time the plaintiff filed the 22 complaint.” Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 838 (9th Cir. 1 2007) (emphasis added). This requirement does not change simply because “[t]he party 2 asserting federal jurisdiction bears the burden of establishing” standing “at every stage of

3 the litigation.” Krottner, 628 F.3d at 1141. “While the proof required to establish 4 standing increases as the suit proceeds, the standing inquiry remains focused on whether 5 the party invoking jurisdiction has the requisite stake in the outcome when the suit was 6 filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (internal citation 7 omitted) (citing Lujan, 504 U.S. at 561 (1992)). 8 By contrast, “[w]hether standing and the other requirements for a live case or

9 controversy exist[] throughout the entirety of a case is considered under the doctrine of 10 mootness.” Wolfe v. City of Portland, 566 F. Supp. 3d 1069, 1081 (D. Or. 2021); see also 11 Vasquez v. Los Angeles Cnty., 487 F.3d 1246, 1253 (9th Cir. 2007) (under the mootness 12 doctrine, “a live controversy must exist at all stages of the litigation, not simply at the 13 time plaintiff filed the complaint”). “A case becomes moot ‘when the issues presented are

14 no longer “live” or the parties lack a legally cognizable interest in the outcome’ of the 15 litigation.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011). “In other 16 words, if events subsequent to the filing of the case resolve the parties’ dispute, [the 17 court] must dismiss the case as moot.” Id. at 1087. 18 In this sense, “mootness [is] ‘the doctrine of standing set in a time frame: The

19 requisite personal interest that must exist at the commencement of the litigation 20 (standing) must continue throughout its existence (mootness).’” United States Parole 21 Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Monaghan, Constitutional 22 Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). Indeed, “[t]he 1 phrases ‘legally cognizable interest’ and ‘injury in fact’ are for all practical purposes 2 synonymous,” even though the former “is often used to describe Article III’s case or

3 controversy requirements when mootness is at issue” and the latter “is often used to 4 discuss these requirements when standing is at issue.” Clark v. City of Lakewood, 259 5 F.3d 996, 1011 n.7 (9th Cir. 2001). 6 For these reasons, the Court analyzes this case for mootness, not for lack of 7 standing. In so doing, the Court is cognizant that “[t]he doctrine of mootness is more 8 complex . . . than simply ‘standing set in a time frame,’ because it has exceptions that do

9 not apply to standing and because there may be circumstances in which certain factors are 10 viewed more flexibly in considering mootness than they would be in considering 11 standing.” Wolfe, 566 F. Supp. 3d at 1082. 12 Both GEO and the State assume that one such exception to mootness—the 13 voluntary cessation exception—is relevant to this case. See Dkt. 71 at 6, 9; Dkt. 72 at 19;

14 Dkt. 74 at 7–9, 11–13; Dkt 75 at 10–11. Under this exception, “a defendant cannot 15 automatically moot a case simply by ending its unlawful conduct once sued.” Already, 16 LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). “Otherwise, a defendant could engage in 17 unlawful conduct, stop when sued to have the case declared moot, then pick up where he 18 left off, repeating this cycle until he achieves all his unlawful ends.” Id.

19 To address this concern, “a defendant claiming that its voluntary compliance 20 moots a case bears the formidable burden of showing that it is absolutely clear the 21 allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the 22 Earth, Inc. v. Laidlaw Envtl. Serv’s (TOC), Inc., 528 U.S. 167, 190 (2000). Put 1 differently, such a defendant bears a “‘heavy burden of persua[ding]’ the court that the 2 challenged conduct cannot reasonably be expected to start up again.”4 Id. at 189 (quoting

3 United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)). 4 The voluntary cessation analysis is not applicable to this case. That analysis 5 applies when a defendant ceases to engage in allegedly improper conduct. See Laidlaw, 6 528 U.S. at 189–90 (to establish mootness, a defendant who voluntarily ceases the 7 challenged conduct must show that the conduct “could not reasonably be expected to 8 recur” or “start up again” (Emphasis added)). Yet the State has never enforced RCW

9 70.395.030 against the NWIPC. To the contrary, when GEO filed this lawsuit in April 10 2021, it acknowledged that, under the statute’s own terms, the State would not be able to 11 enforce the statute against the NWIPC until September 27, 2021, at the earliest. See Dkt. 12 1, ¶¶ 53, 60; Dkt. 8 at 24. Because the State has never engaged in the conduct that GEO 13 seeks to prevent, the voluntary cessation analysis is inapplicable.

14 But even if it were applicable, it would not defeat mootness. “‘[C]essation of the 15 allegedly illegal conduct by government officials has been treated with more solicitude 16 by the courts than similar action by private parties.’” Am. Cargo Transp., Inc. v. United 17 States, 625 F.3d 1176, 1180 (9th Cir. 2010) (quoting Ragsdale v. Turnock, 841 F.2d 18 1358, 1365 (7th Cir. 1988)). Specifically, “unlike in the case of a private party, [courts]

4 This standard differs significantly from the standard applied when determining whether 20 a plaintiff had standing when a lawsuit commenced: “[I]n a lawsuit brought to force compliance, it is the plaintiff’s burden to establish standing by demonstrating that, if unchecked by the 21 litigation, the defendant’s allegedly wrongful behavior will likely occur or continue, and that the ‘threatened injury [is] certainly impending.’” Laidlaw, 528 U.S. at 190 (emphasis added) 22 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). 1 presume the government is acting in good faith.” Am. Cargo Transp., 625 F.3d at 1180. 2 There is no evidence in the record to rebut this presumption.

3 In any event, rather than voluntarily ceasing any conduct, the State has conceded 4 that “[t]he Ninth Circuit’s decision in GEO Group, Inc. v. Newsom, 50 F.4th 745, 763 5 (2022) (en banc), forecloses [the State] from enforcing RCW 70.395.030 against GEO for 6 operating NWIPC as an ‘ICE-contracted facility[y]’” in the first instance. Dkt. 65 at 2. 7 The State has committed that, “as long as Newsom remains the law of the Ninth Circuit 8 and as long as The GEO Group operates the NWIPC exclusively pursuant to a contract

9 with ICE, . . . [the State] will not enforce RCW 70.395.030 against GEO for its operation 10 of the NWIPC.” Id. 11 “If an action or a claim loses its character as a live controversy, then the action or 12 claim becomes ‘moot,’ and [the court] lack[s] jurisdiction to resolve the underlying 13 dispute.” Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798–99 (9th Cir. 1999).

14 “Whether a live controversy exists depends on whether [the court] can grant effective 15 relief ‘in the event that [it] decide[s] the matter on the merits.’” Indep. Living Ctr. of S. 16 California, Inc. v. Maxwell-Jolly, 590 F.3d 725, 727 (9th Cir. 2009) (emphasis added) 17 (quoting NASD Dispute Resolution, Inc. v. Judicial Council of Cal., 488 F.3d 1065, 1068 18 (9th Cir. 2007)). “A change in [controlling] case law coupled with evidence of [a

19 defendant]’s compliance with that case law is an interim event that precludes further legal 20 violations.” Cook v. Brown, 364 F. Supp. 3d 1184, 1189 (D. Or. 2019), aff’d, 845 F. 21 App’x 671 (9th Cir. 2021). “While changes in the law resulting from executive action can 22 be reversed with relative ease, a reversal of [controlling] precedent is analogous to a 1 statutory change that ‘bespeaks finality’ and is not a change that could easily be altered.” 2 Id.

3 The Ninth Circuit’s decision in Newsom, 50 F.4th 745, paired with the State’s 4 concession that Newsom precludes enforcement of RCW 70.395.030 against the NWIPC 5 effectively gives GEO the relief that it seeks in this action. Under these circumstances, 6 the Court cannot grant GEO any effective relief. Therefore, this case is moot. 7 GEO argues that the State’s notice does not render this case moot because it does 8 not bind Governor Inslee’s or Attorney General Ferguson’s successors in office or “any

9 other current or future actors who may also seek to enforce [RCW 70.395.030] against 10 GEO.” Dkt. 71 at 10. Although it is possible that Inslee’s or Ferguson’s successors in 11 office could attempt to enforce this statute against the NWIPC, it is not reasonably 12 expected to occur when the State agrees that, in a parallel lawsuit, the Ninth Circuit has 13 effectively decided the issue before this Court in GEO’s favor. Because the State

14 acknowledges that the Ninth Circuit’s holding in Newsom prevents it from enforcing 15 RCW 70.395.030 against the NWIPC, this Court will not speculate as to whether any 16 future state actor might nevertheless decide otherwise. See Lund v. Cowan, 5 F.4th 964, 17 969 (9th Cir. 2021) (“Simply put, speculative suppositions, far-fetched fears, or remote 18 possibilities of recurrence cannot overcome mootness.”). Any such claim against

19 hypothetical future actors is similarly not ripe for consideration. See 20 Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 838 (9th Cir. 2014) (“The 21 ripeness doctrine seeks to identify those matters that are premature for judicial review 22 1 because the injury at issue is speculative, or may never occur.”). Therefore, this argument 2 fails.

3 GEO also complains that, under the State’s notice, “nothing would prevent [the 4 State] from later enforcing [RCW 70.395.030] against GEO” (1) “if [the State] believed 5 (wrongly) that Newsom was no longer ‘the law of the Ninth Circuit,’” (2) “if GEO 6 contracted with another federal agency (such as U.S. Marshals) to operate NWIPC,” or 7 (3) “if GEO began operating a facility in the State other than NWIPC.” Dkt. 71 at 6 8 (internal citation and footnote omitted). But all these concerns are also too speculative

9 and remote to overcome mootness. See Lund v. Cowan, 5 F.4th at 969. They are also not 10 ripe for consideration. See Protectmarriage.com, 752 F.3d at 838. 11 Finally, GEO’s specific concern that the State may seek to prevent it from 12 operating a detention facility under a contract with the U.S. Marshals Service is 13 unfounded. Aside from the fact that GEO does not seek this relief in its complaint,5 RCW

14 70.395.030 expressly excludes from its ambit “[f]acilit[ies] used to house persons 15 pursuant to 18 U.S.C. Sec. 4013,” which, in turn, authorizes the U.S. Marshals Service to 16 contract with private detention entities. See 18 U.S.C. § 4013(c). 17 For all these reasons, this case is moot. GEO is accordingly not entitled to the 18 entry of either a declaratory judgment or a permanent injunction.

19 20

21 5 GEO’s complaint challenges RCW 70.395.030 as applied to “its operation of detention facilities for ICE.” Dkt. 1 at 17. It does not challenge the law as it applies to any detention 22 facility that it may operate under a contract with the U.S. Marshals Service. 1 III. ORDER 2 Therefore, it is hereby ORDERED that the State’s cross-motion for summary

3 judgment, Dkt. 72, is GRANTED, and GEO’s motion for summary judgment, Dkt. 71, is 4 DENIED. All of GEO’s claims are DISMISSED without prejudice and without leave 5 to amend. 6 The Clerk shall enter a JUDGMENT and close the case. 7 Dated this 16th day of November, 2023. 8 A 9 10 BENJAMIN H. SETTLE 11 United States District Judge

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