may please the court more whitburn for the plaintiffs the problems between october nineteenth two thousand and nine may seventh two thousand and ten defendant donald dunn assaulted at least ten female immigrant detainees while driving them from the hundred attention facility near austin texas to either the austin airport or the austin bus station eight of these women are plaintiffs in this case he drove these women in the very early morning hours down on lit roads and would stop at a certain gas station or other similarly isolated spots to carry out his salts the women that he transported generally spoke no english they had no knowledge of the geographical area the culture of the legal system and reve and more vulnerable in light of their status as undocumented persons afraid of deportation if they resisted in any way furthermore they view donald dunn a soft forty figure as he was someone who had worked as an authority at the h facility was wearing his uniform and was driving official vandar in these transports they were lost in the cage back of these fans and could not get out unless don allowed it generally these women were highly vulnerable alone despite the fact that most of the sims existed precisely to prevent that from happening by requiring that transports not be carried out a female detainees with a company male transport driver the united states immigration and customs enforcement contracts with williamson county in texas to detain them and question weems and county in turn contracts with c c a corrections corporation of america private prison facility the contract contains the contract between ice and williamson county contains an express provision requiring that during all transportation activities at least one transportation officer shall be of the same sex as the residents being transported to the whims and county contract with c c a incorporates the federal contract including this provision nevertheless despite the existence of this provision and defense awareness that the purpose of the provision is precisely the recognition of the special vulnerability a female immigrant detainees and the need to protect them against the sort of assaults committed by donald dunn defendants ignored the provision routinely and federal rina in terms of the civil remedy you know as there's a double delegation the feds delegate to williamson county williamson county delegates to this private company and part of your brief is saying well you know this double delegation creates this this world where it's basically impossible if you accept what the district court did to attach the civil liability but doesn't the delegation actually provide a more straightforward remedy because if we're in the normal situation where ice was operating a regular detention center and this happens the only remedy would have been a bit of ins claim against the guards in the supervisor's deliberate indifference very high standard and grafted on top of that qualified immunity and you saw on the first a standard that is here because it's been delegated down to a private company you have just straight up state law negligence claims against mr hernandez a negligent supervision against c c a so it seems to me that this double delegation has actually resulted in an easier remedy why do you think it's it's create a situation where it's so difficult for your clients to get some civil redress the argument that plaintiffs make in the brief is not that it would be difficult to get any civil redress the argument in the brief is that the plaintiffs are unable to specifically get redress for violation of their constitutional rights so it case that plaintiffs have sued on state law claims and are trying to obtain recovery on the state law claims to be the ultimate issues your clients want and compensation and so if there's i mean state law towards are generally easier to prove than constitutional claims are and the proof is that this question of the state law torts which is the district court there are those out supplemental grounds saying there's no federal question i didn't realize there was potentially diversity why why didn't you ask for reconsideration of that because that seems to me i think as you say in your brief you just missed that there was a diversity allegation the complaint that's the classic situations are that the judge disagreed with your arguments and well reconsiderations probably futile if the district court just misses something one would ask for reconsideration it can get faxed your clients you've been has been going on for years and they want to get to the end of this thing you know that they now they're facing a lengthy appeal with the you've asked two questions er i'll take the first in terms of not relying entirely on state court liability or the liability imposed by state law i think the answer is in part that that only covers some defendants that not are subject to liability under state law the second issue is that i think it is dangerous to rely on the vagaries of state laws in trying to protect civil rights that generally speaking one of the whole ideas a federal civil rights law is that there be uniform standards across the states and that that plaintiffs who are trying to obtain remedy do not have to rely on the particular state laws of the to seek a remedy for violations of their constitutional rights with respect to the issue of why not just go back to that to the district court below and say know get the jurisdictional question right then we could reasonably anticipate coming back before this court on the other issues anyway so our our view was let's get all of the issues decided start with the federal tort claims act as a discretionary function how that should work in this case the mere existence of a constitutional violation being sufficient or not clearly established all those sorts of issues would you go with  absolutely or we place position is that the discretionary function test does not call for precisely the same kind of analysis as the clearly established law test for qualified immunity purposes for a number of reasons both both legal and policy matter the legal analysis as articulated is different there is no clearly established law test that is bound up with the  discretionary function test that we don't have any poor role with the united states this idea that a constitutional right has to be that the mandate has to be specific and intelligible but neither are plaintiffs claiming violations of the ninth amendment here either were claiming violations of constitutional mandates that were specifically articulated by former now this court has already held in this case that the constitutional rights  argue no as you might expect and the reason is that i mentioned before that there were policy reasons for separating out these two strands of argument the clip with with bivins and with the clearly established law tests that goes with qualified immunity you're talking about liability for individual federal officials it is understandably important that before you attach liability to individual federal officials you want to make absolutely certain that under the discretionary function test you're not talking about attaching liability to individual federal officials you're talking about attaching liability to the united states and there it makes sense to allow for a certain amount of evolution in research evolution in the facts patterns that might emerge over time we would or agree that for example the annakin of korea in two thousand and three and the adoption of korea standards in two thousand and seven by ice constitute just that kind of progression in research that the courts should take into consideration it might not that there isn't a whole lot of clearly established law prior to say two thousand and seven that talks about the kinds of things that free is talking about and yet if you hold discretionary function test to the same standard you never allow all constitutional rights to emerge farmer versus brennan simply talked about it didn't didn't specify exactly what things in it were going to should be considered to be the only things that a court to take into consideration in determining how to infer whether individual knew about the substantial risk of serious harm be more examples there will be more things that will count as signs of obvious risks that a federal official said makes a reasonable inferences from so for example in in the plaintiff's complaint we talk about the adoption by ice of three in two thousand and seven and in that adoption in the the policy statement that outlines what that is i specifically says research has shown that a small percentage of of men have certain kinds of aggressive tendencies and have a tendency to violate or to commit violent actions with respect to women given the opportunity to do so well that wasn't the previous cases to talk more about the kinds of culture that you might expect the facility the kinds of you know the history of of one particular individual who might have committed certain kinds of acts but what freedom understood what i saw understood as two thousand and seven is that you may not always know there's a certain percentage of what of men that have these kinds of tendencies you're going to run into them ok in this case we had twenty two guys who over time were transporting these women without any kind of a company eventually you're going to run into that guy who has one of these kinds of tendencies that korea is talking about that ice is talking about and that standard let me shift gears again and go back to the diversity issue judge cost was asking about earlier  you know one of the things that you have to do is plead jurisdictional facts when you plead diversity is not enough just to say i'm diverse heaters and then you say in the brief that the pla united states but it also says that the court does not have original jurisdiction between citizens of a state and citizens or subject of foreign state who are lawfully admitted for permanent residence in our domicile in the same state and you know looking at the complaint i guess some wondering what your response would be as to whether the third of many complaints officially pleads jurisdictional facts and he say for instance that plaintiffs are those in native and citizen of eritrea but then also later you say that she reached the airport left the state of texas and now resides elsewhere in the united states is that enough to show that she was not lawfully present in the united states to plead that and i also don't see where the citizenship of some of these individual defendants is identified c c s identified as a citizen of maryland i think in tennessee if i recall correctly so is that enough to establish one as a matter of pleading jurisdictional facts that these individuals were not lawfully present or even if they were  were they living in maybe a state of texas but one of the state laws that was it not maryland was not tennessee was not the state of citizenship of some of these other defendants and so i guess i have a question there about when we talk about this issue of not the kind of mechanism that allows for permanent residence in the united states i feel you may have more to say we've asked you for a number of questions you haven't covered a lot of your i'll give you two more minutes which may sound like almost nothing but can you vitus i'm hoping you want to provide in the next few minutes yes absolutely with respect to the the corrections corporation of america issue i think that the entity responsible for painting that individual is therefore a federal actor and ten not be a state actor and i don't think that's possible because for one thing would turn williamson county itself into a federal actor and not a state actor would it would the federal prisoners itself would decide that issue i will i will turn the court's attention to lewis the downy seventh circuit case in which the seventh circuit expressed doubt as to whether a contract of this kind could possibly change the status of county employees as state actors for section one hundred three purposes i would also turn the court's attention to the recent  neuron's of vs thompson case that's just circa two thousand and fifteen where the this court commented on this very issue saying no to the conflict in the western district of texas on this precise issue saying were we to address this question we would likely need to seek input from the bureau of prisons well whatever exactly that might mean it surely can't be the case that the fifth circuit was willing to say morning i'm nicholas and i'm arguing first on behalf of corrections corporation of america and evelyn hernandez and the issue on appeal as a pertains to those defendants is whether they were acting under color of state law or under color of federal law we pick up is just saying and i don't actually read the district court so much as saying it was the status of the detainees as much as it was the function here which was immigration detention and that's a federal function everyone pretty much agrees but what if there was only one level of delegation what they just delegated to williamson county not down to your client and williamson county just put these immigration detainees in their county jails and something happened they sued  county sheriff official would would they be a state or federal actor because if you i mean if you look at the purposes still immigration so how would you resolve that kind of situation that's a closer situation of the henderson case and the alvarez case actually would need more information to that county or city jail also housed county or city inmates or pretrial detainees and i if i think i think if that were the situation if it was already a preexisting facility state run state own county own city own facility that was performing that function and then the federal government came along and said hey can we stash inmates at your facility as we're transporting them or if they have a hearing in your jurisdiction i think in that instance  facing prosecution which can be a state function in immigration i think the thrust of the district court is immigration is a special federal that's correct and that's what really sets our case apart from the henderson and alvarez line of cases those were federal prisoners and in our case they they are ice detainees and it was in a facility the only function that that facility per the only function of that facility was to detain ice detainees it didn't also have county city or state prisoners it was creepy it was the sole purpose was to house these female detainees and we agree with the plaintiffs that the focus of this increase should be on what the function that they were performing we know are said that because of their title their status as ice detainees that automatically makes them a federal actor no you look at the function and that's what west versus atkins tells us and that's what henderson tells us and if you look at the function as you as you just noted judge acosta that authority derives solely from detaining alien detainees pending a determination of their removal they can only be characterized as federal actors now the plaintiffs they don't seem to dispute that in their briefing that in the reply brief they actually admitted that that is a federal function but they're floating out this theory that you can actually serve two purposes at the same time and they didn't cite me thore to support that prop that proposition we cited authority that refutes that and frankly it's common sense that for purposes of one thousand nine hundred three or vince liability you can only be one or the other you can only be a federal actor or a state actor i believe the question was posed to plaintiff's counsel when he was up here what if what williams it would be absurd under our under our reasoning williamson county would be dubbed a federal actor well i don't think that that's so absurd well that's not that's not an issue in this case williamson county to make that argument but in the circumstances of this case when you've got a purely federal function and the federal government contracts with even a county if it was a puddle was a county on facility and there were no county detainees or county pretrial detainees or prisoners i think an argument could be made that williamson county was a federal actor and i don't think that that is absurd i think that follows i think the fullest westport person's actions when you when you look at what the test is and you focus on the function i think henderson which is a slightly different case and throws a wrench into it because th serve the dual purpose state and federal federal detention so they answer that question i don't think that that's out of the realm of possibility but we have a much cleaner case we have much similar case that sets us apart from henderson alvarez they were only housing ice detainees he counsel had mentioned the iran whole case that case again was it was in line with henderson and alvarez it was it was a facility that houses both federal prisoners and state prisoners so that is a different case and that's not strickland and in that case involves federal pretrial detainees that were housed in a county own facility and the county then subcontracted with a private prison company through an i g a similar to this case  didn't involve ice detainees those were a federal pretrial detainees and in that case the court the court held because mendoza was housed in a federal detention facility section one thousand nine hundred three does not apply so for looking for a case that was more  persuasive and the most recent case i'll tell you versus cornell companies incorporated five thirty three federal appendix for fourteen thousand situation where there was federal prisoner housed at the federal the detention center also operated by a private prison company and all those all of those cases essentially looked to the function that was being performed and when it is purely a federal function and in this case the detention of ice detainees they can only be characterized as federal actors exactly the same procedurally there's a little bit of a difference i don't think it is relevant or it that it matters but for purposes of sorting out this kind of unwieldy record let me just explain that the section  donald dunn we filed a motion for summary judgment and essentially made the point that for all the same reasons the court ruled that c c a was not a federal actor then our state actor than dunn is not a state actor  you join a brief but even at the end at the end you basically conceded that the state claim should be sent back for the court to sort out the jurisdictional issue yeah unfortunately there's no indication the judge or go consider the diversity issue  and i think i'm as as has been pointed out there are some issues that may need to be sorted out i mean perhaps that's most appropriately done at the at the district court level and the only thing i would add on the nine co counsel did not have a chance to discuss is the guzman versus martinez case that is a district court case out of the state of arizona so obviously it's not binding on you all but the facts are almost identical to what we have here there was a contract it went from ice to to the city and then to c c a and the court had a very good analysis as to why c c a was not a state actor  please the court and lol circles from the department of justice representing the united states i'd like to begin by discussing the questions that judge southwick asked my friend about the federal tort claims act and there are two basic responses i want to give you first the plaintiff agrees that for a constitutional duty to vitiate the discretionary function exception the duty must be specific and intelligible those that's what he says and he believes that his mere citation of the supreme court case farmer versus brett it satisfies the test that he agrees applies but that's not right and it can't be right now farmers you know holds that the government violates the eighth amendment if it shows deliberate indifference to ace serious risk of harm now that of course is to find out the most broad level of generality possible and he says but he and his view that's specific enough though but really that's just saying like the fourth amendment you know precludes unreasonable searches and that's specific enough so he'd sort of in his brief if you look at it we've made the point that if you accept that argument then really a plaintiff could vision a discretionary function exception just by merely all the edging any constitutional violation he says that's not the case but again he defines specific and intelligible it's such a broad level of generality that that's what it amounts to my concern is justified it may be used it clearly establishes an awful long way the opposite direction if that is the test we should apply under the f t c what you say to them well i think actually is a qualified immunity test both in terms of its policy of purposes and how it plays out maps a very well as a discretionary function exception  those exceptions are designed to allow government employees to do their jobs without the fear in in the bivins context that they'll be held in the visually liable for what they do or in the discretionary function context if the government will be held i don't know why there is a difference between the two but the only difference is the personal liability versus government liability but again both of those doctrines as the supreme court explained a very careful lines in the discretionary function cases like b those doctrines are both intended to allow the government to govern poised to do their jobs and it's no less important in the discretionary function context for the united states in terms of its interest to have its government employees be able to do their jobs adult the fear that's going to bring on a lawsuit for damages as a you know as it is for the individual person and there's one difference between the two i wanted to just point out though and that's that on a discretionary function test you of course have a two part inquiry the first question is whether  mandatory duty and the second and that's that mass that's where we believe that the qualified immunity principle maps directly on to discretionary function but there is a second part and that is whether the question is susceptible policy analysis type of question that discretionary function is intended to protect and in that kind of a context are put we know that the plaintiff has not made any argument in his opening reply brief that the second part of the discretionary function test is not satisfied here so i think he's not he's not preserved that question here but even beyond that if you think about it the notion that a constitutional duty can create a mandatory duty while the constitution talks in you know in very broad and general terms about you know the broadest possible policy and large affairs of state and to think that you know that those kinds of questions would not be the type that are susceptible the policy analysis strikes us as very unlikely and again but you don't have to reach that here because he hasn't argued but that would be the difference between the two doctrines and you know i could see your opinion with the say well these are  the same in terms of you know the first prong of discretionary function that's where the discretion you know the mandatory duty is relevant and then the second problem is again well is that the type of claim and you could say that for another case where they've argue again it's unlikely seems unlikely to me that there would be a case where there's a mandatory constitutional duty that isn't susceptible the policy analysis i've used my time reach or explanation sexual misconduct in order to satisfy the deliberate indifference prong of their nine hundred eighty three claim and the other address is the evidence that they heavily rely on their claims against the county and other apple leaves which are which are the transport logs showing detainee transport transports from the how to facility first addressing the requirement of a pattern of prior misconduct just last year in mason versus lafayette this court recognized that it's quote a virtual impossibility unquote to impute a lax this is plenary policy to municipality without a showing of a prior pattern that it uses and in this case the summary judgment record does not overcome that virtually possibility in the brief the apple lease characterize a history of sexual misconduct at the heart of facility and i submit that is a liberal one of the best because the only evidence of this history is a single incident that is shown in the record in two thousand and seven well that single incident cannot establish the deliberate indifference because it is not fairly similar to what ultimately transpired which the court recognized was required to show a pattern of prior violations in a state of davis versus city of north richland hills and more recently and the courts prior opinion indo vs roberts and the panel has already acknowledged the court acknowledged that two thousand and seven incident did not stem from any persistent risk related to detainee transport so even if that one single incident could establish deliberate difference it's not related to the misconduct that involved the opponents in this case so in the absence of a prior pattern of sexual assault or misconduct again the opinion in dover says robertson is instructive there the court examined allegations that ice officials knew about those transport logs and willfully ignored the fact that those logs reflected that terms designed to minimize harm so in other words it's not sufficient just to show a mere violation of policy with no resulting history of misconduct you have to show more and in that opinion the court actually gave hypothetical facts that might provide the something more than just the policy violations for example they they posited whether or not there could be knowledge of prior incidents of transport related misconduct whether or not there might be concerns or fears that were voiced by prior detainees and they also consider whether or not there was any history of prior misconduct by the defendant donald done there is no evidence of that in the summary judgment record in this case of any of those hypothetical facts and moreover i submit in this case the summary judgment posture in the record is one step removed from the situation that the court rejected as implausible pleading facts in  if you recall the appellant's allege that ice officials had knowledge pacific knowledge of the transport logs here after a fully developed summary judgment record there is no evidence that the county knew of those violations so we are one step further removed from the situation that the court rejected for liability against the sufficient dollars to make use of the county commissioners and who would have to have that knowledge of the transportation well if i think the court's precedent show you have to have in here the only official that i think the summary judgment record establishes a likely candidate would be the monitor john foster who was there and visited the few agree he's a policy maker for ninety three per i think he could be as one who was actually on site and took any actions or could've taken any actions with respect to reporting that issue back to the county again i don't think there's any evidence that shows that the commissioners court actually gave him any decision making  policy and in fact the only evidence of policy in this case is the ice contract which was incorporated in strictly mandated to the contract between the county and c c a which said strictly there must be one member of the same sex in any i'm going to have to be quick with respect to williamson county a number of issues problems with the argument that they present one is most of the case they cite are based on farmers run an former did apply the whole point of a hype of having calling for knowledge of a heightened risk of of sexual assault at a particular facility is the idea that  the fact finders trying to draw inferences as to whether the municipality knew or whether the actor knew that there's testimony in the record that the actor list the leaps in county actor certain john foster did not is own testimony says violations of the contractual provision would amount to playing with the lives of female detainees and lighting an open flame with a gasoline tank next to it in that it was so obviously increased the risk of sexual assault so there's no need to draw an inference which is the whole point of that aspect of farmers because we know he knew he says it himself and then finally with respect to williamson county  just say go do the right thing to whomever you delegate your constitutional responsibilities to you have to actually look at it you have to actually make sure they or otherwise you're adopting their problematic policy i think a good case that addresses this issue is bodhi versus city of fortune out of the central district of california in which a a county delegated a the task of pat down searches and said well it has to all be done by the same sex but that it wasn't done at all by the same sex and actual practice by the organization that was doing it but the city was held liable under section one hundred three because they did was the issue that isn't before the court but might be at some point is whether private companies managing county owned prisons housing federal prisoners are proper section one hundred eighty three defendants that's the issue as articulated by the circuit in toronto and that's the issue that the plaintiffs have brought to bear today is it enough to say that just because these are federal detainees that that that automatically makes the  the anybody that is dealing with them into a federal actor as opposed to a state act now by the way that it is not the same to decide to say that you can't bring a  claim in a section one thousand eighty three claim at the same time that's not the same thing as to say that you can't be a federal actor or a state actor at same time because federal courts have not wanted to extend its federal courts do not want to make more than just the kind of narrowly defined regime in which the person who is going after bivins claim has no other remedy and so if you had a section one hundred eighty three remedy available to you you wouldn't want to give that same person a bit of remedy if that them you wouldn't want to give them a business remedy but that's not analytically the same as to say that that person couldn't have been a federal actor and a state actor at the same time with respect to i have eighteen seconds left say were there facts from which the inference could be drawn that a substantial risk of serious harm that's not that's neither general nor unintelligible there might be great areas but place argument is that in this case there is no gray area that that provides a specific intelligible medic if you're a federal official and you know that there's a contractual provision out there that says you know you've got to have a female accompaniment to this to to any transport female detainees you know that the reason for that is because there or there's a danger of increased risk of sexual assault you know that they are because of ice policy you know that there's a certain number of people out there that do this kind of thing and yet you're sitting there scheduling transports for the wee hours of the morning in the case back in the am on these desolate roads for these women who have you know we are in recess until tomorrow morning