good morning to all of you and welcome to our court at the outset judge hall and i wanted to welcome and introduce to you are visiting judge judge barbara rothstein we are delighted to have her working with us this week in helping us with our cases she brings a world of experience and distinction to the task she has served for many years as a district judge in the western district of washington where she was appointed by president carter in one thousand nine hundred and eighty she was the chief judge of that court for many years she became the director of the federal judicial center and she has been trying cases for a long time in many locations and we are delighted to have her join us today the  we'll began but let me make just two very brief observations for you before we start for those of you unfamiliar with our timing and lighting system you'll see we've got a clock that keeps of the time that you have used and there's a lighting system and green means of course you may proceed amber is a two minute warning when the red light goes on it means that your time is up and we'd be much appreciative if you could bring your remarks to a conclusion final observation as you proceed with your arguments you may safely assume that we've had a chance to review not only the briefs and the record excerpts but in many of the instances we've had a chance to actually look at the record as well so feel free to go right to the heart of your argument and with that we will proceed with the st case which is versus course  good morning i'm nicholas a sado counsel for the appellant course of it the question certified by the district court is whether the trafficking victims protection act applies to work programs in federal immigration detention facilities operated by private contractors the answer that question is now the t v p a does not apply because the text of the statute when construed in context does not reach any labor in the custodial detention setting how do we know that well long before the a was and acted congress had authorized immigration detainee labor the ins and i required and extensively regulated detainee detainee labor in its facilities including enforcement through sanctions and courts including this court in via reale versus what i'm consistently recognized that certain late detainee labor could be can compelled while in custody there is no evidence that congress intended to displace that statutory  regulatory framework or supporting jurisdiction and potentially criminalize the very labor that it authorized and which is necessary to maintain a safe and secure detention environment in fact the thousands of pages of legislative history in the acts stated purpose let me just frame the question that you can help me with seems to me the problem that you've got to address frontally has the text itself the text could not be clearer and could not be drafted more broadly than it is whoever it says knowingly provides or obtains the labor or services of a person a one by the following means force violence etc shall be either guilty of a felony or the statute has a companion civil liability the language itself the text does not include any such limitation it doesn't say whoever or knowingly provides or obtains labor of a person except for immigration detainees involved in work programs and a institution run by the united states immigration service or its sorry that it just says whoever knowingly provides how do we write the limitation you propose to have us read into it where congress chose to speak so broadly well there are two guiding principles that should be at the forefront of this court's inquiry and  the st is that a court should always exercise interpretive restraint when assessing the reach of a federal criminal statute like the t v p a the nd and this goes directly to your question is that the meaning of statutory language plain or not depends on the statutes context and as a supreme court recently repeated in gates versus united states the plaintiffs or ambiguity of a statutory language is determined not only by reference to its text but also by the specific context in which the language is with each of those words your honor that they are also inherently brought the words whoever the word obtain the word labor those could could those are those could reach any interpretation and the point of the recent line of supreme court cases that we cited in our briefs is when you've got terms when you have texts that that have no limits that could lead to an unbounded or unrestrained interpretation that is when you need to come in and find the limitations especially when it's involving a criminal statute and it is the inherent broadness of those those words your honor that requires the court to look at the broader context of the statute if you just look at the word labor that could conceivably  apply when a parent tells their teenage son to mow the lawn but i don't think anybody in this courtroom would argue that the t v p a would criminalize that labor converse lee i think it's pretty clear from the cases that if you  traffic a foreign national into this country and enslave them for labor i don't think anyone would disagree that it would apply in that situation the reason why they would apply in both situations of is because the terms are so broad and when the terms are so broad that's when you need to delve a little bit deeper beyond the plain text and determine whether or not the context of those words apply in writing but if he was your example i don't suppose anybody would seriously contend that if a mother tells her child to make her bed in the morning before she comes down for breakfast no one would assume that that constitutes a forced labor in that context the question here is if immigration detainees are given the option of working and are otherwise while in detention and otherwise are compelled to work by means of force threats of violence etc you've got something that looks to fall more closely within the ambit of what they're talking about don't we perhaps but i think you pointed out the spectrum of possible interpretations and that's our point is when when when this is clear but maybe this is not as clear that's when we got to peer the lip feel the layers back and look underneath the plain text and to get right to your question your honor in in this if you look at the context of this statute you've got the eye in a u s c section that it can occur within the facilities and that those standards require inmates to perform certainly or through sanctions for example the p b s require detainees to perform personal housekeeping they must clean their immediate living areas they also require detainees to maintain the common live in areas they must pick up after themselves if they don't do those things they will be sanctioned right so they're the debate is over the meaning of the word labor or services  but what we're talking about is the meaning of the word whoever unknowingly and the meaning of a person those are the essential questions because the only question certified  and accepted by this court in this interlocutory basis is whether the t v p a applies to work programs in the federal immigration detention facilities operated by a private for profit organization that's the only question before us not the nature and extent of the services or even the difficulty of discerning the meaning of labor to have that right well you've accurately restated the district court certified question on but as you know the court's not bound by the way that the question is certified the the order in its entirety is certified in this court can address any issue that's material to that order and we submit that to determine whether or not the statute applies in this narrower context of a work program you have to st decide whether or not it applies it applies in this custodial detention setting and all the nd is the answer at the nd part of your question you can't just look at one of these words in a vacuum you can't just look at whoever or labor or obtain you've got to look at them collectively and in context the word labor is tethered to whoever and ob team so when you're talking about whoever obtains labor you're perec there's no explicit  exception in the statute for federal contractors or for anything related to this detention context but we're not seeking an extension what we're asking the court to do is to interpret those phrases which are inherently broad interpret that phrase in light of its context and when you've got a longstanding statutory and regulatory framework there's and there's no evidence what that when congress an act of the t v p a that they intended to displace that that they intended to for example criminalize conditions of confinement if you look at the allegations in the complaint that's what they are effectively alleging that that there was mold in a shower that this bathroom didn't have cold water therefore i had to i felt coerced to participate in a voluntary work work program and a crafty lawyer or can can can come up with allegations that somehow tie a condition of detention grievance to this t v p s a and suddenly turn what would traditionally be perhaps a conditions of confinement claim or a state law common law claim into criminal liability that's what we're talking about here criminal liability and there's no evidence in the legislative history of the stated intent the stated purpose of the statute that that's what congress intended to do w violation and in answering this question you will be setting the parameters of what does and does not constitute a crime under the t v p s a that is the ramification of this decision it goes beyond the civil aspect thank you all  we'll get into the merits questions certified by the district court but st we believe that it's important to revisit the question of whether this case is properly before this court we're here on an interlocutory appeal from the district court's decision denying course of x motion to  that supposed to be a rare and exceptional case and there are two principal reasons two things that we believe counsel the courts revisiting the decision to take up this interlocutory appeal st there's been a significant change in circumstances since both the district court issued its order and the motions panel issued its order and that is the position of the united states the planets believe that because the united states has weighed in on the question whether the t v p a applies to work programs in federal immigration detention so it is contracted by private prison companies there is no longer a substantial ground for difference of opinion there might be a difference of opinion but is that difference of opinion substantial there's two reasons why the united states position matters he the question of a substantial ground of difference of opinion st united states is responsible for criminally prosecute in the t v department of justice has been given that power by congress and nd course civic is subject to this position by virtue of its contracts course it could not turn around and tell the united states you know what we think we can force people to work under in violation of the t v because it doesn't apply and still draw revenue from the federal government it draws its authority to tame people   st impression for the circuits your honor so the answer is no the nd key factor that counsels in favor of dismissing this appeal is that regardless of what this court decides today this case will continue in front of the district fact that the case will go back for trial may arise in the context that when we take it up on a qualified immunity or whether we review for twenty three you have a question of whether a class was properly certified or not or whether there was a discrete and wholly several bull issue that otherwise cannot be resolved by a court of appeals so the mere fact that it will go back doesn't seem to me to really take us very far in answering the question here certainly your honor but those are not twelve i need to be situated or i agree and so moving to the merits however if the court decides to reach them the question before this court you would that that makes good sense because there are so many factual issues in strictly linked to the question before the court if we look at say the reply brief from course i think you'll find twenty references to the question presented by the district court and certified but none of them actually except for one on page eleven actually accurately state the question well really what are the factual issues that would get in the way so of this being in isn't this none you could you could resolve this question today in order to  have them as a party in the district court and intervention and two because they want a holding here that you can operate a voluntary yosri with that yes or no do you also agree this is what they say in their brief if you operate it in accordance with the federal detention standards that's regulation  o j has promulgated it it also doesn't buy a light the statute do you agree with them on that have to quibble with the premise i agree with the conclusion premise that the p b s the performance based national attention standards are properly promulgated is pursuant to the contract aren't forced my that's exactly that i'm i'm i guess i may be the only one confused in this courtroom i thought the question that had been certified we may not be limited to it but the question that the district court asked us to review and the question that the motions i will agreed should be reviewed was this does the t v  apply to work programs as a general matter in federal immigration detention facilities operated by a private for profit contractor or a corporation you wasn't untouched isn't that the discrete question yes rather and what i'm i'm sort of getting at with my question is whether a particular program assuming argue w that it's states a claim as a matter of law to include within the ambit of the statute these immigration d day in a federal facility run by a private contractor assuming the answer to that question is yes whether or not it violates the statute on the merits strikes me as a thin question and the reason i ask it is because course if it devotes some space in their brief to the additional argument that plaintiffs to morrow no more than allege they were compelled to perform labor for civic could refer our require them to perform under the p b and the yes that is like personal housekeeping is that question before me it is not and it's incorrect that statement is incorrect so if we  turn to that the actual question before the court you are not confused that is the question we're here to address but i'm not going to the merits of whether or not this program or how it may be run runs afoul of the statute or not that is to say whether they coerce or they don't although it's clear that you couldn't stay the claim without alleging coercion or and you couldn't sustain a claim without proving coercion but all i'm asking is whether or not the program coerces is a lot before me or is it before me i don't believe that's before your honor the question before the court or certified by the district court accepted by the motions panel is t v coverage now my friend is correct  part of the t v and coverage question is whether connect with the d o j d o j is trying to get us to haul part of that coverage question without getting into the merits they say is whether their detention facility voluntary work programs would fall within the coverage of the statue and they say they do not fall within the coverage of the statute who's did the o j and i say they have voluntary work programs do not fall within the coverage of the statute i don't know that that's true i think the d o j is saying the t voluntary program then we would be talking about the merits but we don't care right now before this court right whether it's voluntary or involuntary the whole question is whether this statute facility run by exactly what was read to you before i am to the issue of whether it's voluntary or not is only going to tutor confuses at this point are you asking then to put the question as simply and directly as i can i will put the question to the united states and make a set a moment are you asking us to rule on whether the federal programs on the merits of what the united states is going to say work programs in federal immigration detention centers how they specific context ok we don't need to get there because the statute as your honor is observed to the language of the statute is clear it's plain detainees work without any congressional regulation the congress must have known about that and they wouldn't of intended to cover the t v what is that so you've seen fifty dollars fifty five cents d it's not part of the i n a it was an act of before the and i and i came out and it's only for payment of allowances it's not assuming that you can make people in custody work i've addressed how the p b s is not a regulatory scheme there's no remedial aspect of it but here's the thing this question got answered in eighteen in the eight hundred and ninety s with one wing supreme court said that because you don't get a jury trial you can't get forced to work when you're a civil immigration detainees and that background that context does not mention congress must be presumed to have legislated when it legislated the t v against that background background which is that you cannot force people in civil immigration custody to do work and so if in fact we're going to start looking at context to understand the words of this very plain statute the context actually helps the plaintiffs out police and i hope think that the question in chan or was whether the thirty three men meant would prohibit the requirement that people in civil immigration detention facilities run by the federal government perform certain tasks so we actually think the better case out of the th circuit is watson which happened a few years before chander but that is neither here nor there because here we are at the t v chanter was decided for the t v it was and acted the t v p s a in its legislative history which course excites block quotes in its opening brief says we're going to expand upon the protections that were rejected by justice o'connor's plurality and because minsky we don't think that that is broad enough to cover the harms that we believe  background warm that the th circuit could create that you can have civil immigration detainees who are confined while many of them like our plaintiffs are claiming fear for their lives and work  own no you're on the performance space national detention centers i see my time's almost up and i just finish this answer short ok the performance based national detention standards set forth for required personal housekeeping tasks in your immediate living area one is the example the judge marcus games you have to make your bed every day nd you have to keep the energy raise standards are in the contract enter i think and there's a contract in the record is referenced but it is incorporated by reference into the complaint and i believe the district judge relies contract is excuse me the performance based national detention standards are incorporated by reference into the contract they're not attached we have several references in our brief the united states references in their brief the performance based national attention standard there in the record they're available online they're subject keeping the floor around you and your immediate living area free of debris and clutter refraining from hanging up hangers on dividers and stacking newspapers those are the personal housekeeping tasks that i says course of a can can require people to do government and the appellant to answer on ok it is undisputed that they follow them and they must ok so when you would look at the the basic threshold question of whether  private contractor operating a detention center can be subject to the t v anyway you can only be subject to the t v if it violates a right that it has to be forced labor i think that's right so it's only subject to it to the extent there is forced labor i think it was so he with that i think that's correct as to life yes just to button up what you've said and then i really think the court for its time  the personal housekeeping requirements of the p b s just to clarify are not part of the work program so that's why that's not for this court the plaintiffs at least would respectfully that wasn't the personal housekeeping requirements of the are not part of the work program they're separate for you sit down i want to and where we began with what we have in front of us i was looking again at the amicus brief of the united states and they may have a different view on this than you but they make two arguments the st argument they make on page six of their brief is very clear it says the t v be a applies to federal contractors including those operating immigration detention facilities that looks to me to be the question that the district court was seeking to certify and that the powell motions paddle certified that's before us yes that's easy yes the nd argument is what i want to ask you about the nd argument they make it appears on page eight of their brief and says an immigration detention facility that operates in accordance with federal detention standards generally will not violate the t v that strikes me as a merits question i may have that wrong and i want your help on understanding it if it's a merits question that's different from the st question ought we to be opining about it here i do not believe you're wrong i believe that this interlocutory appeal would be an improper place to develop the standard that is to say to the extent the united states is asking us to say that the system that actually operates in detention facilities is in accordance with the federal detention standards and that that does not violate the t v is a merits question distinct from whether the statute covers in the st place immigration detention facilities and applies to federal contractors i think you've got it exactly right your honor i think maybe that comes from a concern by the united states that surely over return they may see a very that may be clear and correct sure but that's not speaking for myself i have little doubt about that should i only i'm asking whether that's before us it's not i think you're correct so if we address the nd question we're moving into at least a mixed question of fact and law am i right about that you're absolutely right thank you but you asked senator earlier question you yes yes i don't think it's before this court on the certified question that you asked so i answered ok so at the plants up please would respectfully request this court dismissed this appeal and send it back to the district court or in the alternative that it hold that the simple question has a simple answer that the court could simply answer the question of whether the term whoever covers federal immigration detention facilities operated by private contractors and as you pointed out our answer that question is yes now we do believe that the way that the standard when the statute is applied in this context has to take account of the circumstances that are inevitable in any sort of detention facility and so that's what the arguments in the nd part of our brief let me ask you let me what's your position on that you are i think that's obviously within the discretion of the court under the it surely is he said would you have us answer the question at least the question the district judge certified or not you know i don't know that we have a particular concern me or the other i mean certainly to the extent the court is going to answer the question we wanted to make clear our view that it does cover you know facilities of this type precisely because as you pointed out and it is of course that it was putting on its time the government also criminally prosecute this statute and wants to ensure that the court you know if it doesn't rest a question doesn't address adopt an underling narrow reading of the statute listen to the government saying that if you're planning to go ahead and bring criminal actions it would be helpful to have a circuit opinion on this is a government of that opinion i mean is that what you're asking certainly to the extent of the court wants to you know answer this question and make clear that there is no doubt that the government's position on that forced labor in this context in a facility a detention facility i'm sorry not to i'm not aware of such a prosecution your honor and you know but nevertheless i think we want to ensure that in the event you actually your position is that you could of course to the extent that a detention facility was being run in a way that you know forced individuals to labor under the threat of serious harm or or one of the other prohibited means under the statute or you know taint labor services by one of the the statute then of course the government would want to be in a position to bring criminal charges as appropriate but at the same time your honor we believe that the statute also has to be understood and that the scope of the liability has been or stood to give  congress intent both to have immigration detention generally and to have work programs in those facilities and so you know to the extent the court goes beyond the sort of narrow question that i think you know you've been describing your honor and then  sure that the court doesn't you know inadvertently or otherwise not read you have to brief you said if you answer the question you need to whoever does the whoever question don't limit it to whoever make it clear that has to be a the scope of the coverage is oh my to forced labor part of the terms of the statute and i have the same quote just mark is just read your argument was that the court should make it clear that the facility that operates in accordance with the legality of voluntary work programs right we would certainly appreciate to the extent the court has a pining on the way that the standard operates in this context that it makes clear that let me ask you but you want us to opine about a particular voluntary kind of factual data you are i think at least as to some of those question it is no question the statute is clear as a bell and it requires it would not state a crime and it wouldn't stay the claim for a civil violation regardless of whoever is regardless of who what a person means on the last there was forced threats of force physical restraint violence serious harm or threats of serious harm or abuse of some crying whoever runs the facility would have to engage in that kind of misconduct before they would be liable at the civil or criminal but that's clear from the terms of the statute but it seems to me what you're asking us to do is to say this program that on ourselves sometimes with starr gets sometimes doesn't violate the statute and i don't know how we can do that without drilling in to the nature and extent of the program it may i have a little doubt that it's voluntary i can't imagine that it's run in any other way but i don't have any data from the district court on that question i don't have any discovery there's nothing before me that i think and so i'm just asking how do i go about doing that other than to stay at a high order of obstruction that in order to state a crime or in order to be liable for a civil remedy force violence or threats have to be used that is self evident from the statute but how do i then say and this program that they run doesn't run afoul of this language without knowing what this program is and how it operates that's going to be rubble i'm having and let me add to that because i think what you really i hope what you're really asking what your real concern is is that the court not go beyond this sort of a fight question and not in some way  imply anything about the legality of voluntary work programs if this court were to do just stick with the certified question i wouldn't that really satisfy the government position right you are i think that's exactly right part of the concern here is that we wouldn't want to court inadvertently or otherwise to say something in answering the question that would you know call into doubt these programs that you know are operating facilities across the country and have explicit congressional authorization and so that's where it is today no more than that we offer no opinion about it whether these programs that the united states run has any validity or invalidity or in any way run in a matter that violates the statute that accomplishes your objectives i think so your honor the only point we're trying to make it in the in the latter part of the brief is just to make clear that you know because congress has authorized these programs and because d h s has proposed standards for these programs you're not really asking us to comment on that you just want to be sure we don't we didn't say something that will create a new problem back at the district court three and correct and to the extent this court opines on the correct standard for applying a t v claim you know we've laid out some thoughts about how the standard ought to apply in this context but if you don't reach that question then obviously that's not it not a concern that we'll all i can i reach that question without drilling down into the facts that i don't have you or i think we've advanced some points about how the statute operates in including with some specific examples related to the housekeeping requirement which related to work stoppage related to it how do i know whether that's right or wrong without anything from the you are you could certainly permit the district court to conduct analysis in the st instance you know we think it's just a matter of comparing you know the statute and background principles to the right point but you're entirely within to be clear the court can answer this nd question and it absolutely should answer the nd question how can we answer the nd question when we don't have any factual record before civil well we've got the allegations we can take those allegations is true if you look closely at the allegations what the plaintiffs are alleging fall squarely within the p b s they allege that they were threatened or actually placed in solitary confinement because they threatened a work stoppage that has nothing to do that is not found in section five dollars the voluntary work program that is a separate disciplinary section in the p b s it doesn't even appear to be w p that is the core of their claim is that they were threatened solitary confinement if they threatened others to stop working that's one you know well that wasn't the complete allegation you're talking about starting in the middle with the allegation they've been originally allegation was that they wanted a work stoppage because they were made to work in voluntarily and how we would in any way get into that without additional factual information how can we do that i don't know if it's clear from the complaint that the reasons for the work stoppage if you just look at the the allegations by the free individual plaintiffs they just blankly assert that they were threatened because they encouraged others to stop well but of course the allegations go beyond that among other things barry antos alleges that he was denied access to personal hygiene items and they were plunged unless and coerced because i think he said that he didn't get a roll of toilet paper on one occasion when he asked for it therefore he had to join the voluntary work program but as you point out he also alleges that he was threatened with solitary confinement because he threatened others or if he encouraged others to engage in a work stoppage also there's vague allegations that they were threatened for refusal to work and it's unclear from the complaint whether that was refusing to perform their jobs while in the program or for example they refused to clean up after themselves  in the common living area or refused to clean their cells it's unclear and it's critical that the court at least create the safe harbor in this decision creates a safe harbor all three are all three parties you've heard from today agree that compliance with the is the t v does not reach into that and that's that's absolutely necessary because when we go if you just answer the question as certified whether it applies to it to a work program that really doesn't get us far when we're out west and it's where you say it doesn't apply to a detention and immigration detention facility at all that's our primary you say it doesn't apply to a detention facility in particular run by a private contractor right whether it's a boat or does that make note of him makes no difference if it's us if it's a another so the bottom line is simply you say this statute doesn't cover what you do or what the united states does on its own that's correct it does not reach within the confines of detention setting compliance with the federal standards the performance based national attention standards performance space national dissensions standards and that's referred to in your contract correct the contract incorporate think the district court certificated certified question it does it's narrow the work programs but as we've talked about we go beyond that i think it's actually necessary that we do i think it was unnecessarily limited as you pointed out i mean it begs the question if it's voluntary then that really doesn't get us anywhere if it's  if it's voluntary and you comply then there's no forced labor so so answering that very narrow question doesn't move the ball too far once but that's the question you're arguing the statute doesn't cover well we're arguing that because the statute doesn't apply at all in this context it does not apply to the implementation of a voluntary work program but there's the voluntary work program and then there's other labor that is required while in custody personal house keeping clean maintaining common ask us to do that for the for the presidential value if why did the district court limit the question that it certified to simply whether the t v p s a applies to work programs in federal immigration detention facilities operated by private for profit companies he could have said more maybe he should have he could have added the thing that you're adding now he could have added what the united states would like us to address or at least in its brief suggested that we should but he wasn't looking for the circuit's help on that question on an well the order in its entirety on this question was very brief i mean it was plain language in and out it didn't go delphi was but it was pretty it was pretty focused like a bull's eye on one question whether this statute does or does not cover federal immigration detention facilities right or any of the labor and that this the battle was given its breath it looks like it does and your answer is that may be true at a high rate of abstraction but it completely misapprehend what congress was about and we shouldn't extend the coverage we should limit it to something more discrete and associated with human traffic but that was the question i thought that the judge was seeking to get the circuit to rule as stated that that was the question but when you delve into the question as we've talked about today where where do you draw that line right so your answer is if you're going to answer that question then you should go the next step and ask answer this question to not withstanding that he didn't ask us to do that that's all i'm getting i think that that's critically important because we'll go back and before the court are still the allegations the majority of which virtually all of them fall outside of the certified question and then and then we're back here months or years from now when right well  a and he will rule on that question and then what would be left is just that discrete portion of the complaint that arguably goes beyond right well right and then why isn't that the the appropriate way and the way we would normally address this kind of problem i don't think the district court is in a you any more of a uniquely situated position and this court to answer it i think you'd be more efficient if this court simply answered it the case is stayed until the this court issues a decision  it would exponentially increase or i'm sorry exponentially reduced the time in which this case comes to a resolution if we can set some ground rules if we look at the allegations and apply to the court's holding so the district court has knows what the guy what the guideposts are if the district court really felt that that would advance the litigation so substantially but you think he would have expanded the question i mean where we were faced with a very discreet question what does this statute cover what doesn't it cover not getting into the allegations of the complaint and which of them hold up and which of them don't hold up right that's that's a question the district court's going to it'll take some time for the district court to answer it but for us to answer we don't even have enough information to go and do it but there's there's one way in which the work stoppage allegation is connected to the voluntary work program and the certified question is dated and that's because the work stoppage encouraging others to stop working it's those in the voluntary work program so at least answering that question whether if we're in compliance if we discipline one of these plaintiffs sanction them with solitary confinement segregation because they did encourage others who are in the work program to stop working does that violate the t v p i mean that's one another reason why it's critical to at least take that extra step because at least those allegations that involve encouraging others to stop working or encouraging others to refuse to work in their jobs as as b w p volunteers that does implicate the work program and we do need that guidance so when we go back we're not starting over from scratch and dragging this lawsuit out any any longer than it needs to be i think we've got your case we thank you very much we thank you counsel and we will move on to the next case this morning which is