FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UGOCHUKWU GOODLUCK 

NWAUZOR; FERNANDO 

AGUIRRE-URBINA, individually and 

on behalf of all those similarly 

situated, 

Plaintiffs-Appellees,

 v. 

THE GEO GROUP, INC., a Florida 

corporation, 

Defendant-Appellant.

Nos. 21-36024 

22-35026 

D.C. No. 3:17-cv05769-RJB 

ORDER 

CERTIFYING 

QUESTIONS TO 

WASHINGTON 

SUPREME 

COURT

STATE OF WASHINGTON, 

Plaintiff-Appellee,

 v. 

THE GEO GROUP, INC., 

Defendant-Appellant.

Nos. 21-36025 

22-35027 

D.C. No. 3:17-cv05806-RJB 

Filed March 7, 2023

Before: Mary H. Murguia, Chief Judge, and William A. 

Fletcher and Mark J. Bennett, Circuit Judges.
2 NWAUZOR V. THE GEO GROUP, INC. 

SUMMARY*

Certification Order / Washington Law

In a case in which federal civil immigration detainees—

who are held in the Northeast ICE Processing Center 

(“NWIPC”), a private detention center in Tacoma, 

Washington, operated by GEO Group—challenge GEO’s 

practice of paying them less than the State’s minimum wage 

to work at the detention center, the panel certified the 

following questions to the Washington Supreme Court: 

1) In the circumstances of this case, are the 

detained workers at NWIPC employees 

within the meaning of Washington’s 

Minimum Wage Act (“MWA”)?

2) If the answer to the first question is yes, does 

the MWA apply to work performed in 

comparable circumstances by civil detainees 

confined in a private detention facility 

operating under a contract with the State? 

3) If the answer to the first question is yes and 

the answer to the second question is no, and 

assuming that the damage award to the 

detained workers is sustained, is that damage 

award an adequate legal remedy that would 

foreclose equitable relief to the State in the 

form of an unjust enrichment award?

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
NWAUZOR V. THE GEO GROUP, INC. 3

COUNSEL

Michael W. Kirk (argued), Charles J. Cooper, J. Joel Alicea, 

Joseph O. Masterman, and Tiernan B. Kane, Cooper and 

Kirk PLLC, Washington, D.C., for Defendant-Appellant.

Jennifer D. Bennett (argued) and Neil K. Sawhney, Gupta 

Wessler PLLC, San Francisco, California; Gregory A. Beck, 

Gupta Wessler PLLC, Washington, D.C.; Jamal N. 

Whitehead, Adam J. Berger, Lindsay L. Halm, and Rebecca 

J. Roe, Schroeter Goldmark & Bender, Seattle, Washington; 

Robert Andrew Free, Law Office of R. Andrew Free, 

Atlanta, Georgia; Meena Pallipamu, Meena Pallipamu 

Immigration Law PLLC, Seattle, Washington; Devin T. 

Theriot-Orr, Open Sky Law PLLC, Kent, Washington; for 

Plaintiffs Appellees Ugochukwu Goodluck Nwauzor and 

Fernando Aguirre-Urbina.

Marsha J. Chien (argued), Andrea Brenneke, and Lane 

Polozola, Assistant Attorneys General; Robert W. Ferguson, 

Attorney General of Washington State; Office of the 

Washington State Attorney General; Seattle, Washington; 

for Plaintiff-Appellee State of Washington.

Christopher J. Hajec and Gina M. D’Andrea, Immigration 

Reform Law Institute, Washington, D.C., for Amicus Curiae 

Immigration Reform Law Institute.

Catherine K. Ruckelshaus, National Employment Law 

Project, New York, New York, for Amicus Curiae National 

Employment Law Project Inc.

Kwi “Kat” Choi and Robin L. Goldfaden, Deputy Attorneys 

General; Vilma R. Palma-Solana and Marisa HernandezStern, Supervising Deputy Attorneys General; Michael L. 

Newman and Satoshi Yanai, Senior Assistant Attorneys 
4 NWAUZOR V. THE GEO GROUP, INC.

General; Rob Bonta, Attorney General of California; 

California Department of Justice; Los Angeles, California; 

for Amici Curiae the States of California, Connecticut, 

Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, 

Minnesota, New Jersey, New Mexico, New York, Oregon, 

Rhode Island, and Vermont and the District of Columbia.

Hannah Woerner, Columbia Legal Services, Olympia, 

Washington; Jeremiah Miller, Fair Work Center, Seattle, 

Washington; for Amici Curiae La Resistencia, Fair Work 

Center, and Prof. Angelina Snodgrass Godoy.

Eunice Hyunhye Cho, American Civil Liberties Union, 

National Prison Project, Washington, D.C.; Aditi Shah, 

American Civil Liberties Union, National Prison Project, 

New York, New York; for Amici Curiae the American Civil 

Liberties Union (ACLU), the ACLU of Washington, and the 

National Immigrant Justice Center.

Matt Adams, Aaron Korthuis, Leila Kang, and Michael Hur, 

Northwest Immigrant Rights Project, Seattle, Washington, 

for Amicus Curiae the Northwest Immigrant Rights Project.
NWAUZOR V. THE GEO GROUP, INC. 5

ORDER

Plaintiffs-appellees are (1) a class of federal civil 

immigration detainees held in a private detention center in 

Tacoma, Washington, operated by defendant-appellant GEO 

Group (“GEO”) pursuant to a contract with the federal 

government, and (2) the State of Washington (“State”). The 

detainees perform compensated essential work at GEO’s 

detention center. The detained workers challenge GEO’s 

practice of paying them less than the State’s minimum wage 

to work at the detention center. GEO appeals from the 

district court’s denial of GEO’s motion for judgment as a 

matter of law; its award of damages to the class; and its 

award of unjust enrichment to the State. We have 

jurisdiction pursuant to 28 U.S.C. § 1291.

The class’s damages claim under the State’s Minimum 

Wage Act (“MWA”) turns on two important and unresolved 

issues of Washington law. Stated briefly, those issues are: 

(1) whether plaintiffs are, in the circumstances of this case, 

“employees” under the MWA; and (2) whether the 

government-institutions exemption of the MWA extends to 

work performed by plaintiffs. The State’s unjust enrichment 

claim depends on another important and unresolved issue of 

Washington law: whether the class’s damages award on their 

MWA claim is an adequate legal remedy that forecloses an 

award to the State of equitable relief under the MWA in the 

form of restitution. 

We respectfully ask the Washington Supreme Court to 

exercise its discretion to decide the certified questions as set 

forth below.
6 NWAUZOR V. THE GEO GROUP, INC.

I. Factual Background

GEO is a private, for-profit corporation that operates 

detention and correctional centers across the country. GEO 

acquired the Northwest ICE Processing Center (“NWIPC”) 

located in Tacoma, Washington, in 2005. GEO operates 

NWIPC pursuant to a contract with Immigration and 

Customs Enforcement (“ICE”) to provide “detention 

management services.” 

NWIPC confines noncitizen civil detainees of the federal 

government as they await determination of their immigration 

status. Detainees are confined at NWIPC until ordered 

deported (“removed”) or released. They are not confined 

based on criminal convictions or pending criminal 

proceedings, nor are they confined as a penalty for 

immigration status violations. Some of the detainees are 

lawful permanent residents with work authorizations.

NWIPC has a capacity of up to 1,575 detainees. In 2015, 

GEO entered into a ten-year contract with ICE to operate 

NWIPC. Under the contract, GEO is to be paid a total of 

$700,292,089.08, or approximately $70,000,000 per year. 

Except for one aberrational year with a lower profit, GEO’s 

annual profit at NWIPC between 2010 and 2018 ranged from 

$18,600,000 to $23,500,000. 

GEO’s 2015 contract with ICE requires it to “perform in 

accordance with specific statutory, regulatory, policy and 

operational constraints, including the ICE/DHS 

Performance Based National Detention Standards 

[(“PBNDS”)] as well as all applicable federal, state and local 

laws.” The PBNDS incorporate “federal, state and local 

labor laws and codes.” The contract specifies that if “a 

conflict exist[s] between [federal, state, and local laws and 

standards], the most stringent shall apply.”
NWAUZOR V. THE GEO GROUP, INC. 7

Under the contract, GEO must provide “nutritious, 

adequately varied meals.” The facility must “be clean and 

vermin/pest free.” GEO must “provide and distribute 

suitable linens,” “launder and change linens,” and comply 

with all applicable health and safety regulations and 

standards. GEO must “provide safe and secure facilities.”

The contract requires GEO to offer detained individuals 

the opportunity to participate in a so-called Voluntary Work 

Program (“VWP”). PBNDS 5.8 states that the VWP 

provides detained individuals “opportunities to work and 

earn money while confined, subject to the number of work 

opportunities available and within the constraints of the 

safety, security[,] and good order of the facility.” GEO has 

offered detained individuals positions in this program since 

2005. During the period relevant to this suit, approximately 

200 to over 400 detained workers have participated each day 

in the VWP at NWIPC.

PBNDS 5.8 specifies that “[t]he normal scheduled 

workday for a detainee employed full time is a maximum of 

8 hours” and that “[d]etainees shall not be permitted to work 

in excess of 8 hours daily, 40 hours weekly.” The standard 

lists the possible reasons a detained worker can be “removed 

from a work detail,” including “unsatisfactory 

performance,” “disruptive behavior, threats to security,” and 

“physical inability to perform the essential elements of the 

job.”

Section k of PBNDS 5.8 provides: “Detainees shall 

receive monetary compensation for work completed in 

accordance with the facility’s standard policy. The 

compensation is at least $1.00 (USD) per day.” During the 

relevant period, ICE reimbursed GEO one dollar per day for 

money paid to detained workers participating in the VWP 
8 NWAUZOR V. THE GEO GROUP, INC.

program. There is nothing in GEO’s contract that prevents 

GEO from paying above the reimbursement amount, either 

voluntarily or if required to do so by state law. GEO has 

never paid detained workers in VWP positions the State’s 

hourly minimum wage.

Under its contract with ICE, GEO has responsibility for 

administrating the VWP, which included creating job 

descriptions, setting work schedules, providing training, and 

selecting workers. During the relevant period, NWIPC’s 

“classification officer” was a GEO employee responsible for 

managing detained workers and creating job assignments. 

GEO employees had the authority to adjust the number of 

detained workers and the type of job they performed. Under 

the contract, ICE was not required to review or sign off on 

GEO’s job descriptions, training requirements, or work 

schedules, and it never did so. ICE played no role in work 

assignments, training, or supervision, or in the day-to-day 

management of the VWP. VWP workers performed work 

that was essential to the day-to-day operations of NWIPC, 

including meal preparation, janitorial services, and laundry 

services. Detained workers were not permitted to work in 

non-secure areas of the facility. GEO was responsible for 

dealing with complaints and grievances concerning working 

conditions. 

GEO usually paid detained workers one dollar per day, 

the minimum prescribed in its contract with ICE. Sometimes 

GEO paid up to five dollars per day to incentivize detained 

workers to perform the most difficult work. GEO also 

occasionally raised wages when detained individuals quit or 

disease outbreaks at NWIPC caused shortages of available 

workers, but never paid more than five dollars a day. 
NWAUZOR V. THE GEO GROUP, INC. 9

On September 20, 2017, the State sued GEO in Pierce 

County Superior Court, alleging violations of the MWA and 

seeking equitable remedies including unjust enrichment. On 

September 26, 2017, detained workers filed a class action in 

federal district court, alleging violations of the MWA and 

seeking damages. On October 9, 2017, GEO removed the 

State’s suit to the district court.

The district court consolidated the two cases for the 

purpose of determining liability. A jury trial was conducted 

in October 2021. The jury returned a unanimous verdict for 

the plaintiffs under the MWA in both cases. After the jury 

returned its verdict, the court held a damages trial in the class 

action and awarded $17.3 million in back pay. The court 

held a separate trial on the State’s equitable claims. It 

enjoined GEO from employing detained individuals without 

paying Washington’s minimum wage, and it awarded the 

State $5,950,340 based on unjust enrichment of GEO. 

GEO timely appealed.

II. Explanation of Certification 

Washington law authorizes certification of a question 

from a federal court when in the opinion of that court “it is 

necessary to ascertain the local law of this state in order to 

dispose of such proceeding and the local law has not been 

clearly determined.” Wash. Rev. Code § 2.60.020. 

A. Question 1

In its appeal to us, GEO argues that the text of the MWA 

and Washington case law interpreting the MWA exclude 

from the MWA’s coverage the detained workers 

participating in the VWP at NWIPC. Both the State and the 

class members argue that the detained workers are 

employees within the meaning of the MWA. See Wash. 
10 NWAUZOR V. THE GEO GROUP, INC.

Rev. Code § 49.46.010(3); Anfinson v. FedEx Ground 

Package Sys., Inc., 281 P.3d 289, 297 (Wash. 2012). 

Whether the MWA applies to the work performed by 

members of the plaintiff class in the circumstances of this 

case is a determinative threshold issue. If detained workers 

at NWIPC are not employees within the meaning of the 

MWA, they have no case. There is no direct and 

unambiguous controlling precedent telling us whether the 

MWA applies to essential work performed by civil detainees 

in a detention facility operated by a private company under 

a contract with the federal government when (1) the work 

performed by the detainees allows the facility operator to 

avoid hiring non-detainees to perform that same work, (2) 

the company’s contract requires the operator to comply with 

“state and local labor laws and codes,” and (3) the 

company’s contract with the federal government allows the 

operator to pay more than one dollar per day. 

Washington courts assess whether workers qualify as 

employees under the MWA using the “economicdependence test.” Anfinson, 281 P.3d at 297–99. This test, 

adopted from the federal Fair Labor Standards Act 

(“FLSA”), asks “whether, as a matter of economic reality, 

the worker is economically dependent upon the alleged 

employer or is instead in business for himself.” Id. at 299

(citation omitted). The Washington Supreme Court first 

adopted this test in the context of determining whether a 

worker under the MWA was an “employee” or an 

independent contractor. Id. at 292. Washington courts have 

not addressed whether the economic-dependence test is 

applicable in a custodial setting under the circumstances 

presented in this case. 
NWAUZOR V. THE GEO GROUP, INC. 11

The MWA excludes from coverage “[a]ny resident, 

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

correctional, detention, treatment or rehabilitative 

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

added). The text of section k does not mention private 

detention institutions. 

In its briefing to us, GEO argues that the MWA does not 

apply to work performed by individuals confined in any 

custodial institution. GEO cites Hill v. Department of Labor 

& Industries, 253 P.3d 430 (Wash. Ct. App. 2011), and 

Calhoun v. State, 193 P.3d 188 (Wash. Ct. App. 2008), in 

support of its argument. Hill and Calhoun were decided 

under section k, but the plaintiffs in both cases were confined 

in public institutions. The institution in Hill was a state-run 

prison. In Calhoun, the institution was a state civil 

commitment facility.

The Washington Supreme Court sometimes looks to the 

FLSA in ascertaining the scope of the MWA. Anfinson, 281 

P.3d at 298; but see Drinkwitz v. Alliant Techsystems, Inc., 

996 P.2d 582, 586 (Wash. 2000) (“[T]he MWA and FLSA 

are not identical and we are not bound by such authority.”). 

Even if the Washington Supreme Court in this case were to 

look to the FLSA for assistance, the federal cases are in 

conflict. The Fourth Circuit has held that Congress meant to 

“protect” only “workers who operate within ‘the traditional 

employment paradigm.’” Ndambi v. CoreCivic, Inc., 990 

F.3d 369, 372 (4th Cir. 2021) (quoting Harker v. State Use 

Indus., 990 F.2d 131, 133 (4th Cir. 1993)). In the Fourth 

Circuit’s view, the FLSA can never cover detained workers. 

Id. at 372–73. Our circuit disagrees, holding that the FLSA 

does not “categorically exclude all labor of any [incarcerated 

individual].” Hale v. Arizona, 993 F.2d 1387, 1392 (9th Cir. 

1993) (en banc) (“Because Congress has specifically 
12 NWAUZOR V. THE GEO GROUP, INC.

exempted nine broad categories of workers from the 

minimum wage provisions of the FLSA but not prisoners, 

we are hard pressed to conclude that it nevertheless intended 

for all [incarcerated individuals] to be excluded.” (internal 

citations omitted)), abrogated on other grounds by Seminole 

Tribe of Fla. v. Florida, 517 U.S. 44, 72–73 (1996).

B. Question 2

If the MWA applies, in the circumstances of this case, to 

work performed by civil detainees in a private detention 

center operated under a contract with the federal 

government, a second question arises: whether the MWA 

applies to work performed, in comparable circumstances, by 

civil detainees at a private detention facility operated under 

a contract with the State. If § 49.46.010(3)(k) does not apply 

to such work performed at a private detention facility 

operated under a contract with the State, but does apply to 

such work performed at private detention facilities operated 

under a contract with the federal government, the federallaw intergovernmental immunity doctrine may bar the 

MWA’s application in the case before us. See, e.g., United 

States v. City of Arcata, 629 F.3d 986, 991 (9th Cir. 2010); 

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

The State and members of the plaintiff class argue that 

section k distinguishes between private and public 

institutions, thereby avoiding intergovernmental immunity 

concerns. GEO argues that Washington treats itself more 

favorably than a federal contractor in comparable 

circumstances, in violation of the intergovernmental 

immunity doctrine and the Supremacy Clause.1 In support 

1

Although not a party in this case, in August 2019 the United States filed 

a statement of interest in the district court adopting GEO’s 
NWAUZOR V. THE GEO GROUP, INC. 13

of its argument, GEO points to guidance promulgated by the 

Washington State Department of Labor and Industries. The 

guidance concerns the MWA’s applicability to detainees in 

a “state, county or municipal correctional, detention, 

treatment or rehabilitative institution” who are “assigned by 

facility officials to work on facility premises for a private 

corporation at rates established and paid for by public 

funds.” ES.A.1, Minimum Wage Act Applicability, last 

revised December 29, 2020. This guidance states that such 

detainees “are not employees of the private corporation and 

would not be subject to the MWA.” Id. GEO argues that 

this guidance shows that if the MWA applies to the VWP at 

NWIPC, it impermissibly discriminates against the federal 

government because it singles out the federal government for 

differential and less favorable treatment.

The application and effect of this guidance are unclear.

First, it is not clear whether the guidance would treat the 

detainees in this case differently from detainees working in 

comparable circumstances in an private institution operating 

under contract with the state. The detainees in the guidance 

are held in a public institution, are employed by a private 

contractor performing a task in that public institution, and 

are paid at “rates established and paid for by public funds.” 

The guidance may not apply to state detainees who are held 

in circumstances comparable to those in the case before us. 

intergovernmental immunity arguments. The United States argued “that 

the intergovernmental immunity doctrine requires invalidation of 

otherwise generally applicable state laws that treat states and those with 

whom it deals better than the Federal Government and those with whom 

it deals.” In a simultaneously filed order, we have invited the 

Department of Justice to file an amicus brief articulating its current views 

on GEO’s federal constitutional defenses.
14 NWAUZOR V. THE GEO GROUP, INC.

That is, the guidance may not apply to state detainees who 

are held in an institution of a private contractor, who are 

employed by that contractor at that institution, and who are 

paid at rates determined by the contractor. And it may not 

apply when the private contractor makes a substantial profit 

by using detained workers to perform essential tasks in the 

facility instead of using non-detained workers to whom it 

would be obliged to pay minimum wage under the MWA.

Second, even if the guidance were to apply in such a 

fashion as to treat the federal government less favorably than 

the State, the guidance is not a judicial interpretation of the 

MWA.

C. Question 3

The district court awarded equitable monetary relief to 

the State, holding that GEO had been unjustly enriched by 

its violations of the MWA. The Washington Supreme Court 

has explained that equitable relief is unavailable when the 

party seeking relief has an adequate remedy at law. Seattle 

Pro. Eng’g Emps. Ass’n v. Boeing Co., 991 P.2d 1126, 1134 

(Wash. 2000). 

GEO contends that the State is barred from seeking 

unjust enrichment because there is an adequate remedy at 

law. The State argues that the damages remedy under the 

MWA does not provide an adequate remedy to the nondetained community in the Tacoma area that has been 

adversely affected by GEO’s reliance on its detained 

workforce to perform essential work at NWIPC. The State 

contends, and the district court agreed, that this essential 

work would have been performed by non-detained labor 

drawn from the community and paid according to the 

requirements of the MWA if GEO had not used its detained 

workforce to perform that work at rates far below those 
NWAUZOR V. THE GEO GROUP, INC. 15

specified in the MWA. Testimony at trial recounted that if 

GEO had not relied on detained workers to perform essential 

work at NWIPC, it would have been required to employ 

eighty five additional non-detained workers. 

Washington’s case law on unjust enrichment does not 

clearly answer the question whether the MWA damages 

award to the class is an adequate remedy that bars an unjust 

enrichment award to the State. An answer to this question is 

necessary to the disposition of the State’s unjust enrichment 

claim. There may be other questions relevant to the award 

of unjust enrichment in this case that the Washington 

Supreme Court may also choose to address. 

D. Implications

Certification of questions to the Washington Supreme 

Court is particularly appropriate when questions of unsettled 

state law have “significant policy implications.” Centurion 

Props. III, LCC v. Chi. Title Ins. Co., 793 F.3d 1087, 1089 

(9th Cir. 2015) (internal citation and quotation marks 

omitted); see also Barlow v. Washington, 38 F.4th 62, 66–

67 (9th Cir. 2022) (considering the impact of certified 

questions on state universities). We believe that the abovediscussed certified questions meet this standard. The 

resolution of these questions is likely to have a significant 

impact on how the federal government contracts with private 

detention facilities in the State.

III. Certified Questions

We respectfully certify the following three questions to 

the Washington Supreme Court:
16 NWAUZOR V. THE GEO GROUP, INC.

(1) In the circumstances of this case, are the 

detained workers at NWIPC employees 

within the meaning of Washington’s 

MWA?

(2) If the answer to the first question is yes, 

does the MWA apply to work performed 

in comparable circumstances by civil 

detainees confined in a private detention 

facility operating under a contract with 

the State? 

(3) If the answer to the first question is yes 

and the answer to the second question is 

no, and assuming that the damage award 

to the detained workers is sustained, is 

that damage award an adequate legal 

remedy that would foreclose equitable 

relief to the State in the form of an unjust 

enrichment award? 

We do not intend the phrasing of our questions to restrict 

the Washington Supreme Court’s deliberations. We 

recognize that the Washington Supreme Court may exercise 

its discretion and reformulate the questions. Broad v. 

Mannesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir. 

1999).

The Clerk of Court is ordered to transmit to the 

Washington Supreme Court, under official seal of the Ninth 

Circuit, this order and request for certification along with all 

relevant briefs and excerpts of record pursuant to Wash. Rev. 

Code §§ 2.60.010 and 2.60.030 and Washington Rule of 

Appellate Procedure 16.16.
NWAUZOR V. THE GEO GROUP, INC. 17

If the Washington Supreme Court accepts the certified 

questions, we designate GEO as the party to file the first 

brief pursuant to Washington Rule of Appellate Procedure 

16.16(e)(1). 

Further proceedings in this court are stayed pending the 

Washington Supreme Court’s decision whether to accept 

review; and, if that Court accepts review, pending receipt of 

answers to the certified questions. This appeal is withdrawn 

from submission until further order. The Clerk is directed to 

administratively close the docket. The panel will resume 

control and jurisdiction upon the Washington Supreme 

Court’s decision to not accept the certified questions or upon 

receipt of answers to the certified questions. 

When the Washington Supreme Court decides whether 

to accept the certified questions, or orders additional briefing 

before deciding whether to accept the questions, the parties 

are directed to promptly file a joint status report informing 

us. If the Washington Supreme Court accepts the certified 

question, the parties are directed to file further joint status 

reports informing us when briefing has been completed and 

a date set for oral argument and when the Washington 

Supreme Court provides answers to the certified questions. 

 /s/ Mary H. Murguia 

 Chief Judge Mary H. Murguia 

 U.S. Court of Appeals for the Ninth Circuit