U.S. District Court United States District Court for the Western District of Washington (Tacoma)
CIVIL DOCKET FOR CASE #: 3:17-cv-05769-RJB

Nwauzor et al v. The GEO Group Inc Assigned to: Judge Robert J. Bryan Case in other court: 9th CCA, 18-35753 Cause: 28:1332 Diversity

Date Filed: 09/26/2017 Jury Demand: Defendant Nature of Suit: 790 Labor: Other Jurisdiction: Diversity

Plaintiff
Chao Chen individually and on behalf of all those similarly situated TERMINATED: 06/13/2018

represented by Adam J Berger SCHROETER GOLDMARK & BENDER 810 3RD AVE STE 500 SEATTLE, WA 98104 206-622-8000 Fax: 206-682-2305 Email: berger@sgb-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Devin T Theriot-Orr OPEN SKY LAW PLLC 20415 72ND AVE S STE 110 KENT, WA 98032 206-962-5052 Fax: 206-681-9663 Email: devin@opensky.law LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jamal N Whitehead SCHROETER GOLDMARK & BENDER 810 3RD AVE STE 500 SEATTLE, WA 98104 206-622-8000 Email: whitehead@sgb-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lindsay Halm

SCHROETER GOLDMARK & BENDER 810 3RD AVE STE 500 SEATTLE, WA 98104 206-622-8000 Fax: 206-682-2305 Email: halm@sgb-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

R Andrew Free LAW OFFICE OF R. ANDREW FREE PO BOX 90568 NASHVILLE, TN 37209 844-321-3221 Email: andrew@immigrantcivilrights.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Ugochukwu Goodluck Nwauzor

represented by Devin T Theriot-Orr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jamal N Whitehead (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam J Berger (See above for address) ATTORNEY TO BE NOTICED

Lindsay Halm (See above for address) ATTORNEY TO BE NOTICED

Meena Pallipamu Menter MENTER IMMIGRATION LAW PLLC 8201 164TH AVENUE NE, STE 200 SEATTLE, WA 98052 206-419-7332 Fax: 206-407-2594

Plaintiff
Fernando Aguirre-Urbina individually, and on behalf of all those similarly situated

Email: meena@meenamenter.com ATTORNEY TO BE NOTICED
R Andrew Free (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Jane Roe SCHROETER GOLDMARK & BENDER 810 3RD AVE STE 500 SEATTLE, WA 98104 206-622-8000 Fax: 206-682-2305 Email: roe@sgb-law.com ATTORNEY TO BE NOTICED
represented by Devin T Theriot-Orr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jamal N Whitehead (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam J Berger (See above for address) ATTORNEY TO BE NOTICED
Lindsay Halm (See above for address) ATTORNEY TO BE NOTICED
R Andrew Free (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Jane Roe (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
The GEO Group Inc a Florida corporation

represented by Adrienne Scheffey AKERMAN LLP (CO) 1900 SIXTEENTH ST STE 1700 DENVER, CO 80202 303-260-7712 Email: adrienne.scheffey@akerman.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allison N Angel AKERMAN LLP (CO) 1900 SIXTEENTH ST STE 1700 DENVER, CO 80202 303-260-7712 Email: allison.angel@akerman.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ashley E Calhoun AKERMAN LLP (CO) 1900 SIXTEENTH ST STE 1700 DENVER, CO 80202 303-260-7712 Email: ashley.calhoun@akerman.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher J Eby AKERMAN LLP (CO) 1900 SIXTEENTH ST STE 1700 DENVER, CO 80202 303-260-7712 Email: christopher.eby@akerman.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Colin L Barnacle AKERMAN LLP (CO)

1900 SIXTEENTH ST STE 1700 DENVER, CO 80202 303-260-7712 Email: colin.barnacle@akerman.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joan K Mell III BRANCHES LAW PLLC 1019 REGENTS BLVD STE 204 FIRCREST, WA 98466 253-566-2510 Email: joan@3brancheslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrea D'Ambra NORTON ROSE FULBRIGHT US LLP (NY) 1301 AVENUE OF THE AMERICAS NEW YORK, NY 10019 212-318-3015 Email: andrea.dambra@nortonrosefulbright.com TERMINATED: 03/08/2019 PRO HAC VICE
Carolyn Short HOLLAND & KNIGHT LLP (PA) CIRCA CENTER 2929 ARCH ST STE 800 PHILADELPHIA, PA 19104 215-252-9553 Email: carolyn.short@hklaw.com TERMINATED: 08/01/2019 PRO HAC VICE
Charles A Deacon NORTON ROSE FULBRIGHT US LLP (SAN ANTONIO) 300 CONVENT ST STE 2100 SAN ANTONIO, TX 78205 210-270-7133 Email:

charlie.deacon@nortonrosefulbright.com TERMINATED: 03/15/2019 PRO HAC VICE
Dawn A Ellison GREENBERG TRAURIG LLP (DC) 2101 L ST NW, STE 1000 WASHINGTON, DC 20037 202-331-3159 Email: ellisond@gtlaw.com TERMINATED: 03/11/2019 PRO HAC VICE
Douglas Edward Smith LITTLER MENDELSON (WA) ONE UNION SQUARE 600 UNIVERSITY STREET SUITE 3200 SEATTLE, WA 98101-3122 206-623-3300 Fax: 206-447-6965 Email: desmith@littler.com TERMINATED: 03/08/2019
J Matthew Donohue HOLLAND & KNIGHT (OR) 2300 US BANCORP TOWER 111 SW FIFTH AVE PORTLAND, OR 97204 503-243-2300 Fax: 503-241-8014 Email: Matt.Donohue@hklaw.com TERMINATED: 08/01/2019
Jerry Stouck GREENBERG TRAURIG LLP (DC) 2101 L ST NW, STE 1000 WASHINGTON, DC 20037 202-331-3173 Email: stouckj@gtlaw.com TERMINATED: 03/11/2019 PRO HAC VICE
Kristin Mariko Asai HOLLAND & KNIGHT (OR) 2300 US BANCORP TOWER

111 SW FIFTH AVE PORTLAND, OR 97204 503-243-2300 Email: kristin.asai@hklaw.com TERMINATED: 08/01/2019
Mark Emery NORTON ROSE FULBRIGHT US LLP (DC) 799 9TH STREET STE 1000 WASHINGTON, DC 20001 202-662-0210 Fax: 202-662-4643 Email: mark.emery@nortonrosefulbright.com TERMINATED: 03/08/2019 PRO HAC VICE
Michael Pusateri GREENBERG TRAURIG LLP (DC) 2101 L ST NW, STE 1000 WASHINGTON, DC 20037 202-533-2354 Email: pusaterim@gtlaw.com TERMINATED: 03/11/2019 PRO HAC VICE
Scott A Schipma GREENBERG TRAURIG LLP (DC) 2101 L ST NW, STE 1000 WASHINGTON, DC 20037 202-331-3141 Email: schipmas@gtlaw.com TERMINATED: 03/11/2019 PRO HAC VICE
Shannon Lea Armstrong HOLLAND & KNIGHT (OR) 2300 US BANCORP TOWER 111 SW FIFTH AVE PORTLAND, OR 97204 503-243-2300 Fax: 503-241-8014 Email: shannon.armstrong@hklaw.com TERMINATED: 08/01/2019

V. Interested Party United States of America
Amicus Immigration Reform Law Institute
V. Movant State of Washington
Counter Claimant The GEO Group Inc a Florida corporation

William J Kim LITTLER MENDELSON (WA) ONE UNION SQUARE 600 UNIVERSITY ST STE 3200 SEATTLE, WA 98101-3122 206-623-3300 Fax: 206-260-3055 Email: wkim@littler.com TERMINATED: 03/08/2019
represented by Christopher M Lynch US DEPT OF JUSTICE CIVIL DIVISION 1100 L STREET NW WASHINGTON, DC 200009 202-353-4537 Email: Christopher.M.Lynch@usdoj.gov ATTORNEY TO BE NOTICED
represented by State of Washington PRO SE
represented by Adrienne Scheffey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allison N Angel (See above for address)

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ashley E Calhoun (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher J Eby (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Colin L Barnacle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joan K Mell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrea D'Ambra (See above for address) TERMINATED: 03/08/2019 PRO HAC VICE
Carolyn Short (See above for address) TERMINATED: 08/01/2019 PRO HAC VICE
Charles A Deacon (See above for address) TERMINATED: 03/15/2019 PRO HAC VICE
Dawn A Ellison (See above for address) TERMINATED: 03/11/2019 PRO HAC VICE

V. Counter Defendant

Douglas Edward Smith (See above for address) TERMINATED: 03/08/2019
J Matthew Donohue (See above for address) TERMINATED: 08/01/2019
Jerry Stouck (See above for address) TERMINATED: 03/11/2019 PRO HAC VICE
Kristin Mariko Asai (See above for address) TERMINATED: 08/01/2019
Mark Emery (See above for address) TERMINATED: 03/08/2019 PRO HAC VICE
Michael Pusateri (See above for address) TERMINATED: 03/11/2019 PRO HAC VICE
Scott A Schipma (See above for address) TERMINATED: 03/11/2019 PRO HAC VICE
Shannon Lea Armstrong (See above for address) TERMINATED: 08/01/2019
William J Kim (See above for address) TERMINATED: 03/08/2019

Chao Chen individually and on behalf of all those similarly situated
Counter Claimant The GEO Group Inc a Florida corporation

represented by Adam J Berger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Devin T Theriot-Orr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jamal N Whitehead (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lindsay Halm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Andrew Free (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adrienne Scheffey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allison N Angel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ashley E Calhoun (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher J Eby (See above for address)

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Colin L Barnacle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joan K Mell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrea D'Ambra (See above for address) TERMINATED: 03/08/2019 PRO HAC VICE
Carolyn Short (See above for address) TERMINATED: 08/01/2019 PRO HAC VICE
Charles A Deacon (See above for address) TERMINATED: 03/15/2019 PRO HAC VICE
Dawn A Ellison (See above for address) TERMINATED: 03/11/2019 PRO HAC VICE
Douglas Edward Smith (See above for address) TERMINATED: 03/08/2019
J Matthew Donohue (See above for address) TERMINATED: 08/01/2019
Jerry Stouck (See above for address) TERMINATED: 03/11/2019

PRO HAC VICE
Kristin Mariko Asai (See above for address) TERMINATED: 08/01/2019
Mark Emery (See above for address) TERMINATED: 03/08/2019 PRO HAC VICE
Michael Pusateri (See above for address) TERMINATED: 03/11/2019 PRO HAC VICE
Scott A Schipma (See above for address) TERMINATED: 03/11/2019 PRO HAC VICE
Shannon Lea Armstrong (See above for address) TERMINATED: 08/01/2019
William J Kim (See above for address) TERMINATED: 03/08/2019

V.
Counter Defendant
Fernando Aguirre-Urbina individually, and on behalf of all those similarly situated

represented by Devin T Theriot-Orr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jamal N Whitehead (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam J Berger (See above for address) ATTORNEY TO BE NOTICED

Lindsay Halm (See above for address) ATTORNEY TO BE NOTICED

R Andrew Free (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant Ugochukwu Goodluck Nwauzor

represented by Devin T Theriot-Orr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jamal N Whitehead (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam J Berger (See above for address) ATTORNEY TO BE NOTICED

Lindsay Halm (See above for address) ATTORNEY TO BE NOTICED

Meena Pallipamu Menter (See above for address) ATTORNEY TO BE NOTICED

R Andrew Free (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/26/2017
09/28/2017

# Docket Text
1 COMPLAINT against defendant The GEO Group Inc (Receipt # 09815031071), filed by Chao Chen. (Attachments: # 1 Summons, # 2 Civil Cover Sheet)(Whitehead, Jamal) Modified on 9/28/2017 (GMR). (Entered: 09/26/2017)
Judge Robert J. Bryan added. (GMR) (Entered: 09/28/2017)

09/28/2017 09/28/2017 09/28/2017
09/28/2017 09/28/2017 09/29/2017 09/29/2017
10/09/2017 10/09/2017 10/11/2017 10/11/2017

2 Summons(es) Electronically Issued as to defendant(s) The GEO Group Inc. (GMR) (Entered: 09/28/2017)
3 ORDER REGARDING DISCOVERY AND DEPOSITIONS. Authorized by Judge Robert J. Bryan. (JL) (Entered: 09/28/2017)
4 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT. FRCP 26f Conference Deadline is 12/13/2017, Initial Disclosure Deadline is 12/20/2017, Joint Status Report due by 12/27/2017. Authorized by Judge Robert J. Bryan. (JL) (Entered: 09/28/2017)
JSR due 12/27/2017. (JL) (Entered: 09/28/2017)
5 NOTICE of Appearance by attorney Joan K Mell on behalf of Defendant The GEO Group Inc. (Mell, Joan) (Entered: 09/28/2017)
6 APPLICATION OF ATTORNEY R. ANDREW FREE FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff Chao Chen (Fee Paid) Receipt No. 0981-5035434 (Berger, Adam) (Entered: 09/29/2017)
7 ORDER on the 6 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney R Andrew Free for Chao Chen, by Clerk William M McCool. (No document associated with this docket entry, text only.)
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CMG) (Entered: 09/29/2017)
8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , filed by Defendant The GEO Group Inc. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 11/3/2017, (Mell, Joan) (Entered: 10/09/2017)
9 STATEMENT OF RELATED CASE by Defendant The GEO Group Inc (Mell, Joan) (Entered: 10/09/2017)
10 APPLICATION OF ATTORNEY Charles A. Deacon FOR LEAVE TO APPEAR PRO HAC VICE for Defendant The GEO Group Inc (Fee Paid) Receipt No. 0981-5049153 (Mell, Joan) (Entered: 10/11/2017)
11 APPLICATION OF ATTORNEY Mark Emery FOR LEAVE TO APPEAR PRO HAC VICE for Defendant The GEO Group Inc (Fee Paid) Receipt No. 0981-5049175 (Mell, Joan) (Entered: 10/11/2017)

10/11/2017
10/11/2017
10/12/2017 10/30/2017 11/03/2017 11/07/2017 11/15/2017 11/17/2017 11/17/2017

12 ORDER on the 10 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Charles A Deacon for The GEO Group Inc, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(GMR) (Entered: 10/11/2017)
13 ORDER on the 11 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Mark Emery for The GEO Group Inc, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(GMR) (Entered: 10/11/2017)
14 DEMAND for JURY TRIAL by Defendant The GEO Group Inc (Mell, Joan) (Entered: 10/12/2017)
15 RESPONSE, by Plaintiff Chao Chen, to 8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . (Whitehead, Jamal) (Entered: 10/30/2017)
16 REPLY, filed by Defendant The GEO Group Inc, TO RESPONSE to 8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Mell, Joan) (Entered: 11/03/2017)
17 ORDER Setting Hearing on Motion 8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing set for 11/20/2017 at 11:00 AM in Courtroom A before Judge Robert J. Bryan.Signed by Judge Robert J. Bryan. (JL) (Entered: 11/07/2017)
18 WAIVER OF SERVICE of summons upon defendant The GEO Group Inc mailed on 10/13/2017 (Whitehead, Jamal) (Entered: 11/15/2017)
19 DECLARATION OF JOAN K. MELL ATTACHING GEO-ICE CONTRACT WITH LIMITED TRADE SECRET REDACTIONS by Defendant The GEO Group Inc (Mell, Joan) (Entered: 11/17/2017)
20 MOTION to Seal LIMITED REDACTED PAGES OF THE GEO-ICE CONTRACT, filed by Defendant The GEO Group Inc. (Attachments: # 1 Proposed Order) Noting Date 11/17/2017, (Mell, Joan) (Entered: 11/17/2017)

11/20/2017
11/21/2017 11/29/2017 11/30/2017 12/01/2017 12/01/2017 12/01/2017 12/06/2017 12/06/2017

21 MINUTE ENTRY for proceedings held before Judge Robert J. BryanDep Clerk: Tyler Campbell; Pla Counsel: Ptf Chen: Andrew Free, Adam Berger, Jamal Whitehead, Devin Theriot-Orr, Lindsay Halm; Ptf State of WA: Marsha Chien, La Rond Baker; Def Counsel: Joan Mell, Charles Deacon, Mark Emery; CR: Angela Nicolavo; Motion Hearing held on 11/20/2017 re 8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by The GEO Group Inc. Argument by parties. Order to be issued. (TC) Modified on 11/21/2017 (SP). (Entered: 11/20/2017)
22 MINUTE ORDER. Pursuant to Western District of Washington Local Civil Rule 7(d)(2), the MOTION to Seal LIMITED REDACTED PAGES OF THE GEO-ICE CONTRACT (Dkt. 20 ) is hereby renoted to 12/1/2017. Authorized by Judge Robert J. Bryan. (JL) (Entered: 11/21/2017)
23 RESPONSE, by Plaintiff Chao Chen, to 20 MOTION to Seal LIMITED REDACTED PAGES OF THE GEO-ICE CONTRACT. Oral Argument Requested. (Attachments: # 1 Exhibit A - Venturella Supplemental Declaration)(Free, R) (Entered: 11/29/2017)
24 DECLARATION OF JOAN K. MELL ATTACHING GEO-ICE AMENDMENTS TO THE 2015 CONTRACT by Defendant The GEO Group Inc (Mell, Joan) (Entered: 11/30/2017)
25 REPLY, filed by Defendant The GEO Group Inc, TO RESPONSE to 20 MOTION to Seal LIMITED REDACTED PAGES OF THE GEOICE CONTRACT (Mell, Joan) (Entered: 12/01/2017)
26 DECLARATION of DAVID VENTURELLA IN SUPPORT OF GEO'S MOTION TO FILE LIMITED REDACTED PAGES IN CAMERA AND UNDER SEAL filed by Defendant The GEO Group Inc re 20 MOTION to Seal LIMITED REDACTED PAGES OF THE GEO-ICE CONTRACT (Mell, Joan) (Entered: 12/01/2017)
27 NOTICE OF INTENT TO FILE SURREPLY re 26 Declaration, 25 Reply to Response to Motion ; filed by Plaintiff Chao Chen. (Free, R) (Entered: 12/01/2017)
28 ORDER ON DEFENDANT THE GEO GROUP, INC.'S MOTION TO DISMISS CLASS ACTION COMPLAINT FOR DAMAGES, denying 8 . Signed by Judge Robert J. Bryan. (JL) (Entered: 12/06/2017)
29 NOTICE regarding sur-reply by Plaintiff under LCR 7(g)(1) re 26 Declaration, 25 Reply to Response to Motion ; filed by Plaintiff Chao Chen. (Free, R) (Entered: 12/06/2017)

12/11/2017 12/11/2017
12/19/2017 12/20/2017 12/28/2017 12/29/2017

30 ORDER granting in part and denying in part 20 Motion to Seal. Signed by Judge Robert J. Bryan. (JL) (Entered: 12/11/2017)
31 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of ExampleMotion Hearing held on 11/20/2017 before Judge Robert J. Bryan.
Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.
To purchase a copy of the transcript, contact court reporter Angela Nicolavo, angela_nicolavo@wawd.uscourts.gov, 253-882-3832.
Release of Transcript Restriction set for 3/12/2018, (AN) (Entered: 12/11/2017)
32 CORPORATE DISCLOSURE STATEMENT identifying Other Affiliate Vanguard Group, Inc., Other Affiliate BlackRock Fund Advisors for The GEO Group Inc. Filed pursuant to Fed.R.Civ.P 7.1. Filed by The GEO Group Inc (Mell, Joan) (Entered: 12/19/2017)
33 ANSWER to 1 Complaint , COUNTERCLAIM against plaintiff Chao Chen by The GEO Group Inc.(Mell, Joan) (Entered: 12/20/2017)
34 JOINT STATUS REPORT signed by all parties estimated Trial Days: 15. Filed by Plaintiff Chao Chen.(Free, R) (Entered: 12/28/2017)
35 MINUTE ORDER SETTING TRIAL AND PRETRIAL DATES; Length of Trial: *FIFTEEN DAYS*. Jury Trial is set for 3/4/2019 at 09:30 AM in Courtroom A before Judge Robert J. Bryan. Joinder of Parties due by 3/30/2018, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 9/5/2018, Motions due by 10/15/2018, Discovery completed by 11/5/2018, Dispositive motions due by 12/4/2018, Motions in Limine due by 2/4/2019, Pretrial Order due by 2/15/2019, Pretrial Conference set for 2/22/2019 at 08:30 AM in Courtroom A before Judge Robert J. Bryan. Trial briefs to be submitted by 2/22/2019, Proposed voir dire/jury instructions due by 2/22/2019. s/Tyler Campbell, as directed by Judge Robert J. Bryan. (TC) (Entered: 12/29/2017)

01/05/2018 01/10/2018 01/29/2018 02/02/2018 02/28/2018 03/12/2018 03/13/2018
03/14/2018 03/23/2018 03/23/2018

36 AMENDED MINUTE ORDER SETTING TRIAL AND PRETRIAL DATES: Added Deadline for FILING motion for class certification March 25, 2018. s/Tyler Campbell, as directed by Judge Robert J. Bryan. (TC) (Entered: 01/05/2018)
37 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , filed by Plaintiff Chao Chen. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 2/2/2018, (Whitehead, Jamal) (Entered: 01/10/2018)
38 RESPONSE, by Defendant The GEO Group Inc, to 37 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . Oral Argument Requested. (Mell, Joan) (Entered: 01/29/2018)
39 REPLY, filed by Plaintiff Chao Chen, TO RESPONSE to 37 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Whitehead, Jamal) (Entered: 02/02/2018)
40 ORDER ON PLAINTIFF'S MOTION TO DISMISS OR STRIKE DEFENDANT'S COUNTERCLAIMS AND AFFIRMATIVE DEFENSES, granting in part and denying in part 37 Motion. Signed by Judge Robert J. Bryan. (JL) (Entered: 02/28/2018)
41 APPLICATION OF ATTORNEY D'Ambra, Andrea FOR LEAVE TO APPEAR PRO HAC VICE for Defendant The GEO Group Inc (Fee Paid) Receipt No. 0981-5235627 (Mell, Joan) (Entered: 03/12/2018)
42 ORDER on the 41 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Andrea D'Ambra for The GEO Group Inc, by Clerk William M McCool. (No document associated with this docket entry, text only.)
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(GMR) (Entered: 03/13/2018)
43 ANSWER to 33 Answer to Complaint, Counterclaim by Chao Chen.(Theriot-Orr, Devin) (Entered: 03/14/2018)
44 MOTION to Certify Class , filed by Counter Defendant Chao Chen, Plaintiff Chao Chen. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 4/20/2018, (Whitehead, Jamal) (Entered: 03/23/2018)
45 DECLARATION of JAMAL N. WHITEHEAD filed by Counter Defendant Chao Chen, Plaintiff Chao Chen re 44 MOTION to Certify

03/23/2018 03/23/2018 03/23/2018 03/23/2018
03/26/2018 03/26/2018
03/29/2018 03/29/2018 03/30/2018

Class (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Whitehead, Jamal) (Entered: 03/23/2018)
46 DECLARATION of DEVIN THERIOT-ORR filed by Counter Defendant Chao Chen, Plaintiff Chao Chen re 44 MOTION to Certify Class (Whitehead, Jamal) (Entered: 03/23/2018)
47 DECLARATION of ANDREW FREE filed by Counter Defendant Chao Chen, Plaintiff Chao Chen re 44 MOTION to Certify Class (Whitehead, Jamal) (Entered: 03/23/2018)
48 PLEASE Disregard DECLARATION of CHAO CHEN filed by Counter Defendant Chao Chen, Plaintiff Chao Chen re 44 MOTION to Certify Class (Whitehead, Jamal) Modified on 3/26/2018: document stricken at the request of filer; re-filed with exhibits as ECF #49. (CMG). (Entered: 03/23/2018)
49 DECLARATION of CHAO CHEN W EXHIBITS filed by Counter Defendant Chao Chen, Plaintiff Chao Chen re 44 MOTION to Certify Class (Attachments: # 1 Exhibit 1, SEALED # 2 Exhibit 2, SEALED # 3 Exhibit 3, SEALED # 4 Exhibit 4)(Whitehead, Jamal) Modified on 3/30/2018: exhibits sealed as they contain personal identifiers (CMG). (Entered: 03/23/2018)
NOTICE of Docket Text Modification re 48 Declaration of Chao Chen: document stricken at the request of filer; re-filed with exhibits as ECF #49 (CMG) (Entered: 03/26/2018)
50 REDACTED DOCUMENT: Exhibits 2, 3, 4 to the PRAECIPE to attach document (Praecipe re exhibits) to the 49 Declaration by Counter Defendant Chao Chen, Plaintiff Chao Chen (Attachments: # 1 Exhibit 3, # 2 Exhibit 4)(Whitehead, Jamal) Modified on 3/30/2018: At filers request, text language edited to correct the description (CMG). (Entered: 03/26/2018)
51 MOTION to Dismiss Based on Plaintiff's Failure to Join Required Government Parties, filed by Defendant The GEO Group Inc. Oral Argument Requested. Noting Date 4/20/2018, (Mell, Joan) (Entered: 03/29/2018)
52 DECLARATION of Joan K. Mell filed by Defendant The GEO Group Inc re 51 MOTION to Dismiss Based on Plaintiff's Failure to Join Required Government Parties (Mell, Joan) (Entered: 03/29/2018)
NOTICE TO FILER re Exhibits 2, 3, 4 attached to the 49 Declaration of Chao Chen. These documents contain personal identifiers that must

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04/13/2018 04/13/2018 04/13/2018

be redacted pursuant to Local Civil Rule 5.2 and FRCP 5.2. You are required to re-file a redacted version of your document using the event "Redacted Document" located in the Other Documents category. This event will allow you to link back to your original filing and will not affect your original filing date. Pursuant to LCR 5.2 and FRCP 5.2, the document(s) have been administratively sealed by the Court. (CMG) (Entered: 03/30/2018)
NOTICE of Docket Text Modification re 50 Praecipe to Attach Document: at the filer's request, text language edited to correct the description. (CMG) (Entered: 03/30/2018)
53 PRAECIPE re 51 MOTION to Dismiss Based on Plaintiff's Failure to Join Required Government Parties SIGNED SIGNATURE PAGE by Defendant The GEO Group Inc (Mell, Joan) (Entered: 04/04/2018)
54 MOTION For Relief From Deadline, filed by Defendant The GEO Group Inc. Noting Date 4/13/2018, (Mell, Joan) Modified on 4/6/2018 (SP). (Entered: 04/05/2018)
55 DECLARATION of Joan K. Mell filed by Defendant The GEO Group Inc re 54 MOTION for Relief For Relief From Deadline (Mell, Joan) (Entered: 04/05/2018)
56 RESPONSE, by Counter Defendant Chao Chen, Plaintiff Chao Chen, to 54 MOTION for Relief For Relief From Deadline. (Whitehead, Jamal) (Entered: 04/11/2018)
57 DECLARATION of JAMAL N. WHITEHEAD filed by Counter Defendant Chao Chen, Plaintiff Chao Chen re 54 MOTION for Relief For Relief From Deadline (Whitehead, Jamal) (Entered: 04/11/2018)
58 REPLY, filed by Defendant The GEO Group Inc, TO RESPONSE to 54 MOTION for Relief For Relief From Deadline (Mell, Joan) (Entered: 04/13/2018)
59 Second DECLARATION of Joan K. Mell filed by Defendant The GEO Group Inc re 54 MOTION for Relief For Relief From Deadline (Mell, Joan) (Entered: 04/13/2018)
60 ORDER ON DEFENDANT THE GEO GROUP INC.'S MOTION FOR RELIEF FROM DEADLINE; ORDER SETTING DEADLINES AND ORAL ARGUMENT, denying 54 Motion for Relief; Setting Oral Argument on 51 MOTION to Dismiss for 4/24/18 at 9:00 a.m.; renoting 44 MOTION to Certify Class to 5/7/18. Signed by Judge Robert J. Bryan. (JL) (Entered: 04/13/2018)

04/13/2018 04/16/2018 04/16/2018 04/20/2018 04/24/2018
04/25/2018
04/26/2018 04/27/2018

61 Amended DECLARATION of Joan K. Mell filed by Defendant The GEO Group Inc re 54 MOTION for Relief For Relief From Deadline (Mell, Joan) (Entered: 04/13/2018)
62 RESPONSE, by Plaintiff Chao Chen, to 51 MOTION to Dismiss Based on Plaintiff's Failure to Join Required Government Parties. Oral Argument Requested. (Whitehead, Jamal) (Entered: 04/16/2018)
63 DECLARATION of Jamal Whitehead filed by Plaintiff Chao Chen re 51 MOTION to Dismiss Based on Plaintiff's Failure to Join Required Government Parties (Whitehead, Jamal) (Entered: 04/16/2018)
64 REPLY, filed by Defendant The GEO Group Inc, TO RESPONSE to 51 MOTION to Dismiss Based on Plaintiff's Failure to Join Required Government Parties (Mell, Joan) (Entered: 04/20/2018)
65 MINUTE ENTRY for proceedings held before Judge Robert J. BryanDep Clerk: Tyler Campbell; Pla Counsel: Jamal Whitehead, Andrew Free, Adam Berger, Lindsay Halm, Devin Theriot-Orr; Def Counsel: Joan Mell, Charles Deacon; CR: Debbie Zurn; Time of Hearing: 9:00; Courtroom: A; Motion Hearing held on 4/24/2018 re 51 MOTION to Dismiss Based on Plaintiff's Failure to Join Required Government Parties filed by The GEO Group Inc. Argument by Defendant, Plaintiff State of Washington, and Plaintiff Chen. Rebuttal by Defendant. Order(s) to be issued at a later date. (Motion hearing held in conjunction with related case C17-5806.) (TC) (Entered: 04/24/2018)
66 MINUTE ENTRY for proceedings held before Judge Robert J. BryanDep Clerk: Tyler Campbell; Pla Counsel: Jamal Whitehead, Andrew Free; Def Counsel: Joan Mell, Charles Deacon; Time of Hearing: 1:00 pm; Telephone Conference held on 4/25/2018. Plaintiff's counsel brings issue to Court of scope of inquiry to Plaintiff at deposition. Court rules that Defendants may ask questions inquired about. (TC) (Entered: 04/25/2018)
67 ORDER on 51 Defendant The GEO Group Inc.'s Motion for Order of Dismissal Based on Plaintiff's Failure to Join Required Government Parties by Judge Robert J. Bryan. (TC) (Entered: 04/26/2018)
68 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 4/24/2018 before Judge Robert J. Bryan.
Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed,

04/30/2018 04/30/2018 04/30/2018 05/01/2018 05/01/2018 05/01/2018
05/09/2018 05/11/2018

the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.
To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.
Release of Transcript Restriction set for 7/26/2018, (DZ) (Entered: 04/27/2018)
69 MOTION To Deny Class Certification With Prejudice , filed by Defendant The GEO Group Inc. Oral Argument Requested. Noting Date 5/25/2018, (Mell, Joan) (Entered: 04/30/2018)
70 DECLARATION of Michael Heye filed by Defendant The GEO Group Inc re 69 MOTION To Deny Class Certification With Prejudice (Mell, Joan) (Entered: 04/30/2018)
71 DECLARATION of Joan K. Mell filed by Defendant The GEO Group Inc re 69 MOTION To Deny Class Certification With Prejudice (Mell, Joan) (Entered: 04/30/2018)
72 NOTICE to Withdraw Pending Motion re 44 MOTION to Certify Class ; by Plaintiff Chao Chen. (Whitehead, Jamal) (Entered: 05/01/2018)
73 MOTION for Relief from Deadlines and for status Conference, filed by Plaintiff Chao Chen. (Attachments: # 1 Proposed Order) Noting Date 5/11/2018, (Whitehead, Jamal) (Entered: 05/01/2018)
74 DECLARATION of Jamal Whitehead in Support of Plaintiff's Motion for Relief from Deadlines and for Status Conference filed by Plaintiff Chao Chen re 73 MOTION for Relief from Deadlines and for status Conference (Whitehead, Jamal) (Entered: 05/01/2018)
75 RESPONSE, by Defendant The GEO Group Inc, to 73 MOTION for Relief from Deadlines and for status Conference. (Mell, Joan) (Entered: 05/09/2018)
76 REPLY, filed by Counter Defendant Chao Chen, Plaintiff Chao Chen, TO RESPONSE to 73 MOTION for Relief from Deadlines and for status Conference (Whitehead, Jamal) (Entered: 05/11/2018)

05/15/2018
05/24/2018 06/04/2018 06/04/2018 06/05/2018 06/08/2018 06/13/2018 06/13/2018 06/13/2018 06/13/2018 06/18/2018

77 ORDER ON PLAINTIFF'S MOTION FOR RELIEF FROM DEADLINES AND FOR STATUS CONFERENCE, granting in part and denying in part 73 Motion for Relief, renoting 69 MOTION To Deny Class Certification With Prejudice to 7/13/2018. Signed by Judge Robert J. Bryan. (JL) (Entered: 05/15/2018)
78 MOTION to Amend 1 Complaint,, filed by Counter Defendant Chao Chen, Plaintiff Chao Chen. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order) Noting Date 6/8/2018, (Whitehead, Jamal) (Entered: 05/24/2018)
79 RESPONSE, by Defendant The GEO Group Inc, to 78 MOTION to Amend 1 Complaint,. (Mell, Joan) (Entered: 06/04/2018)
80 DECLARATION of Joan K. Mell filed by Defendant The GEO Group Inc re 78 MOTION to Amend 1 Complaint, (Mell, Joan) (Entered: 06/04/2018)
81 Supplemental DECLARATION of Joan K. Mell filed by Defendant The GEO Group Inc re 78 MOTION to Amend 1 Complaint, (Mell, Joan) (Entered: 06/05/2018)
82 REPLY, filed by Counter Defendant Chao Chen, Plaintiff Chao Chen, TO RESPONSE to 78 MOTION to Amend 1 Complaint, (Attachments: # 1 Exhibit 3, # 2 Exhibit 4)(Whitehead, Jamal) (Entered: 06/08/2018)
83 ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO AMEND CLASS ACTION COMPLAINT, granting 78 Motion to Amend. Counsel is directed to e-file their Amended Complaint (Dkt. [82-1]). Signed by Judge Robert J. Bryan.(JL) (Entered: 06/13/2018)
84 AMENDED COMPLAINT against defendant(s) The GEO Group Inc, filed by Ugochukwu Goodluck Nwauzor and Fernando AguirreUrbina Chao Chen.(Whitehead, Jamal) Modified on 6/19/2018: corrected the filer names (CMG). (Entered: 06/13/2018)
Party Ugochukwu Goodluck Nwauzor and Fernando Aguirre-Urbina added pursuant to the First Amended Class Action Complaint for Damages. (ECF #84) (CMG) (Entered: 06/19/2018)
NOTICE TO PARIES: the case name has updated as follows: Nwauzor et al v. The GEO Group Inc. (GMR) (Entered: 06/27/2018)
85 NOTICE of Appearance by attorney Meena Pallipamu Menter on behalf of Counter Defendant Chao Chen, Plaintiff Ugochukwu Goodluck Nwauzor Chao Chen. (Menter, Meena) Modified on

06/19/2018 06/19/2018 06/21/2018 06/21/2018
06/21/2018 06/21/2018 06/21/2018 06/27/2018
06/27/2018

6/19/2018: corrected the party being represented (CMG). (Entered: 06/18/2018)
NOTICE of Docket Text Modification re 85 Notice of Appearance : corrected the name of the party being represented by counsel. (CMG) (Entered: 06/19/2018)
NOTICE of Docket Text Modification re 84 Amended Complaint : corrected the filer names (CMG) (Entered: 06/19/2018)
86 MOTION to Certify Class , filed by Plaintiffs Fernando AguirreUrbina, Chao Chen, Ugochukwu Goodluck Nwauzor, Counter Defendant Chao Chen. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 7/13/2018, (Whitehead, Jamal) (Entered: 06/21/2018)
87 DECLARATION of JAMAL N. WHITEHEAD filed by Plaintiffs Fernando Aguirre-Urbina, Chao Chen, Ugochukwu Goodluck Nwauzor, Counter Defendant Chao Chen re 86 MOTION to Certify Class (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Whitehead, Jamal) (Entered: 06/21/2018)
88 DECLARATION of UGOCHUKWU GOODLUCK NWAUZOR filed by Plaintiffs Fernando Aguirre-Urbina, Chao Chen, Ugochukwu Goodluck Nwauzor, Counter Defendant Chao Chen re 86 MOTION to Certify Class (Whitehead, Jamal) (Entered: 06/21/2018)
89 DECLARATION of FERNANDO AGUIRRE-URBINA filed by Plaintiffs Fernando Aguirre-Urbina, Chao Chen, Ugochukwu Goodluck Nwauzor, Counter Defendant Chao Chen re 86 MOTION to Certify Class (Whitehead, Jamal) (Entered: 06/21/2018)
90 DECLARATION of Meena Menter filed by Plaintiffs Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor re 86 MOTION to Certify Class (Whitehead, Jamal) (Entered: 06/21/2018)
91 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , FOR LACK OF SUBJECT MATTER JURISDICTION, AND FOR FAILURE TO JOIN PARTIES, filed by Defendant The GEO Group Inc, Counter Claimant The GEO Group Inc. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 7/20/2018, (Mell, Joan) (Entered: 06/27/2018)
92 ANSWER to 84 Amended Complaint with JURY DEMAND, COUNTERCLAIM against plaintiff Fernando Aguirre-Urbina,

Ugochukwu Goodluck Nwauzor by The GEO Group Inc.(Mell, Joan) (Entered: 06/27/2018)

07/05/2018

93 NOTICE of Filing Video deposition of Fernando Aguirre-Urbina in Paper or Physical Form with the Clerk's Office by Plaintiffs Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor, Counter Defendants Fernando Aguirre-Urbina, Chao Chen, Ugochukwu Goodluck Nwauzor. inre 87 Declaration, 86 Motion to Certify Class,. (Attachments: # 1 Exhibit)(Berger, Adam) (Entered: 07/05/2018)

07/05/2018

RECEIPT of Disc containing Video deposition of Fernando AguirreUrbina re 87 Declaration of Jamal N Whitehead (Exhibit 8) and 93 Notice of Filing Paper or Physical Materials, both re 86 MOTION to Certify Class. Disc placed on shelf in Clerk's Office. (GMR) (Entered: 07/05/2018)

07/09/2018

94 RESPONSE, by Plaintiff Ugochukwu Goodluck Nwauzor, to 69 MOTION To Deny Class Certification With Prejudice . (Whitehead, Jamal) (Entered: 07/09/2018)

07/09/2018

95 RESPONSE, by Defendant The GEO Group Inc, to 86 MOTION to Certify Class . Oral Argument Requested. (Mell, Joan) (Entered: 07/09/2018)

07/09/2018 96 DECLARATION of Joan K. Mell filed by Defendant The GEO Group Inc re 86 MOTION to Certify Class (Mell, Joan) (Entered: 07/09/2018)

07/09/2018 97 DECLARATION of Ryan Kimble filed by Defendant The GEO Group Inc re 86 MOTION to Certify Class (Mell, Joan) (Entered: 07/09/2018)

07/10/2018

98 NOTICE of Hearing on Motion re 86 MOTION to Certify Class , 91 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , FOR LACK OF SUBJECT MATTER JURISDICTION, AND FOR FAILURE TO JOIN PARTIES, 69 MOTION To Deny Class Certification With Prejudice : Motion Hearing set for 8/2/2018 at 09:30 AM in Courtroom A before Judge Robert J. Bryan. (TC) (Entered: 07/10/2018)

07/13/2018

99 REPLY, filed by Defendant The GEO Group Inc, TO RESPONSE to 69 MOTION To Deny Class Certification With Prejudice (Mell, Joan) (Entered: 07/13/2018)

07/13/2018

100 REPLY, filed by Plaintiffs Fernando Aguirre-Urbina, Chao Chen, Ugochukwu Goodluck Nwauzor, Counter Defendants Fernando Aguirre-Urbina, Chao Chen, Ugochukwu Goodluck Nwauzor, TO RESPONSE to 86 MOTION to Certify Class (Whitehead, Jamal) (Entered: 07/13/2018)

07/16/2018

101 RESPONSE, by Plaintiffs Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor, to 91 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , FOR LACK OF SUBJECT MATTER JURISDICTION, AND FOR FAILURE TO JOIN PARTIES. Oral Argument Requested. (Attachments: # 1 Exhibit A - GEO RFA Response, # 2 Exhibit B - GEO SoTex FOIA Invoices, # 3 Exhibit C GEO LaSalle DF Handbook, # 4 Exhibit D - Apr. 24, 2018 Hrg Tr)(Free, R) (Entered: 07/16/2018)

07/18/2018

102 DECLARATION of R. Andrew Free filed by Plaintiffs Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor re 91 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , FOR LACK OF SUBJECT MATTER JURISDICTION, AND FOR FAILURE TO JOIN PARTIES (Free, R) (Entered: 07/18/2018)

07/18/2018

103 ANSWER to 92 Answer to Amended Complaint, Counterclaim by Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor.(TheriotOrr, Devin) (Entered: 07/18/2018)

07/20/2018

104 REPLY, filed by Defendant The GEO Group Inc, TO RESPONSE to 91 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , FOR LACK OF SUBJECT MATTER JURISDICTION, AND FOR FAILURE TO JOIN PARTIES (Mell, Joan) (Entered: 07/20/2018)

07/20/2018

105 DECLARATION of Tracey Valerio filed by Defendant The GEO Group Inc re 91 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , FOR LACK OF SUBJECT MATTER JURISDICTION, AND FOR FAILURE TO JOIN PARTIES (Mell, Joan) (Entered: 07/20/2018)

07/24/2018

106 MINUTE ORDER re: 98 Notice of Hearing on Motions. At the August 2, 2018, hearing for oral argument on three pending motions (Dkts. 69 , 86 , 91 ), Plaintiffs and Defendant shall each be given twenty (20) minutes total for oral argument. Entered at the direction of Judge Robert J. Bryan. (JL) (Entered: 07/24/2018)

07/26/2018

107 Stipulated MOTION To File Roberto Valdez's Report Under Seal, filed by Defendant The GEO Group Inc. (Attachments: # 1 Proposed Order [Proposed] Order) Noting Date 7/26/2018, (Mell, Joan) (Entered: 07/26/2018)

07/30/2018

108 SEALED DOCUMENT Dr. Roberto Valdez's Report by Defendant The GEO Group Inc in support of Defendant Geo Group's 95 Response to the 86 Motion to Certify Class; and 107 Stipulated MOTION To File Roberto Valdez's Report Under Seal (Mell, Joan) Modified on 7/30/2018: to correct document relationship and modify language (CMG). (Entered: 07/30/2018)

07/30/2018

109 ORDER GRANTING STIPULATED MOTION TO FILE MENTAL HEALTH RECORDS UNDER SEAL, granting 107 Stipulated Motion. Signed by Judge Robert J. Bryan. (JL) (Entered: 07/30/2018)

07/30/2018

NOTICE of Docket Text Modification re 108 Sealed Document: Dr. Roberto Valdez's Report: corrected document relationship and modified text language (CMG) (Entered: 07/30/2018)

08/01/2018

110 NOTICE of Supplemental Authority re 104 Reply to Response to Motion, 105 Declaration of Tracey Valerio by Plaintiffs Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor (Attachments: # 1 Exhibit August 1, 2018 ICE Touhy Letter)(Free, R) (Entered: 08/01/2018)

08/02/2018

111 Supplemental DECLARATION of Joan K. Mell filed by Defendant The GEO Group Inc re 91 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , FOR LACK OF SUBJECT MATTER JURISDICTION, AND FOR FAILURE TO JOIN PARTIES (Mell, Joan) (Entered: 08/02/2018)

08/02/2018

112 MINUTE ENTRY for proceedings held before Judge Robert J. BryanDep Clerk: Rhonda Miller; Pla Counsel: Jamal Whitehead, Adam Berger, Andrew Free; Def Counsel: Joan Mell, Mark Emery; CR: Barry Fanning; Motion Hearing held on 8/2/2018 69 MOTION To Deny Class Certification With Prejudice filed by The GEO Group Inc, 91 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , FOR LACK OF SUBJECT MATTER JURISDICTION, AND FOR FAILURE TO JOIN PARTIES filed by The GEO Group Inc, 86 MOTION to Certify Class filed by Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor, Chao Chen. Oral argument presented. Court will issue written order. (RM) (Entered: 08/02/2018)

08/06/2018

113 ORDER ON DEFENDANT THE GEO GROUP, INC.'S MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT, denying 91 Motion to Dismiss for Failure to State a Claim. Signed by Judge Robert J. Bryan. (JL) (Entered: 08/06/2018)

08/06/2018

114 ORDER ON PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND DEFENDANT'S MOTION TO DENY CLASS CERTIFICATION, denying 69 Motion to Deny Class Certification ; granting 86 Motion to Certify Class. Signed by Judge Robert J. Bryan. (JL) (Entered: 08/06/2018)

08/08/2018 115 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 8/2/2018 before Judge Robert J. Bryan.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Barry Fanning, barry_fanning@wawd.uscourts.gov, 253-882-3833.

Release of Transcript Restriction set for 11/6/2018, (BF) (Entered: 08/08/2018)

08/21/2018 116 LETTER from USCA re receipt of (18-80095) Petition for Permission to Appeal under 23(f). (SP) (Entered: 08/21/2018)

08/22/2018

117 APPLICATION OF ATTORNEY Scott Schipma FOR LEAVE TO APPEAR PRO HAC VICE for Defendant The GEO Group Inc (Fee Paid) Receipt No. 0981-5444477 (Mell, Joan) (Entered: 08/22/2018)

08/22/2018

118 ORDER on the 117 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Scott A Schipma for The GEO Group Inc, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(GMR) (Entered: 08/22/2018)

08/29/2018

119 STIPULATION AND PROPOSED ORDER MODIFYING SCHEDULING ORDER by parties re 35 Minute Order Setting Trial and Pretrial Dates,, (Whitehead, Jamal) (Entered: 08/29/2018)

08/30/2018

120 ORDER MODIFYING SCHEDULING ORDER, granting 119 Stipulation (Motion) filed by Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor. The Clerk will enter a new Scheduling Order based upon the trial date of September 3, 2019. Signed by Judge Robert J. Bryan. (JL) (Entered: 08/30/2018)

08/30/2018

121 MINUTE ORDER RESETTING TRIAL AND PRETRIAL DATES; Length of Trial: *FIFTEEN DAYS*. Jury Trial is set for 9/3/2019 at 09:30 AM in Courtroom A before Judge Robert J. Bryan. Proposed Class Notice and Notice Plan submitted by 10/8/2018, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 3/4/2019, Motions due by 4/15/2019, Discovery completed by 5/6/2019, Dispositive motions due by 6/3/2019, Motions in Limine due by 8/5/2019, Pretrial Order due by 8/16/2019, Pretrial Conference set for 8/23/2019 at 08:30 AM in Courtroom A before Judge Robert J. Bryan. Trial briefs to be submitted by 8/23/2019, Proposed voir dire/jury instructions due by 8/23/2019. s/Tyler Campbell, as directed by Judge Robert J. Bryan. (TC) (Entered: 08/30/2018)

09/05/2018

122 NOTICE OF APPEAL (18-35753) to Ninth Circuit re 113 Order on Motion to Dismiss for Failure to State a Claim by Defendant The GEO Group Inc. Filing Fee $505, Receipt number 0981-5459541. (Attachments: # 1 Exhibit Representation Statement)(Mell, Joan) Modified on 9/10/2018: CCA # added (CMG). (Entered: 09/05/2018)

09/07/2018

123 USCA Case Number 18-35753 and Time Schedule Order as to 122 Notice of Appeal filed by The GEO Group Inc.: (CMG) (Entered: 09/10/2018)

09/13/2018 124 CERTIFICATE of No Transcripts Ordered by Defendant The GEO Group Inc (Mell, Joan) (Entered: 09/13/2018)

09/28/2018 125 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 8/2/2018 before Judge Robert J. Bryan.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Barry Fanning, barry_fanning@wawd.uscourts.gov, 253-882-3833.

Release of Transcript Restriction set for 12/27/2018, (BF) (Entered: 09/28/2018)

10/08/2018

126 STIPULATED MOTION* FOR RELIEF FROM CLASS NOTICE PLAN DEADLINE by parties re 120 Stipulation and Order, (Berger, Adam) *Modified to reflect correct event type on 10/9/2018 (TC). (Entered: 10/08/2018)

10/09/2018

127 ORDER granting 126 Stipulated Motion for relief from Class Notice Plan Deadline signed by Judge Robert J. Bryan. Deadline for Proposed Class Notice and Notice Plan: 11/07/2018. (TC) (Entered: 10/09/2018)

10/10/2018

128 NOTICE of Appearance by attorney Douglas Edward Smith on behalf of Defendant The GEO Group Inc, Counter Claimants The GEO Group Inc, The GEO Group Inc. (Smith, Douglas) (Entered: 10/10/2018)

10/15/2018

129 APPLICATION OF ATTORNEY Dawn A. Ellison FOR LEAVE TO APPEAR PRO HAC VICE for Defendant The GEO Group Inc, Counter Claimants The GEO Group Inc, The GEO Group Inc (Fee Paid) Receipt No. 0981-5508411 (Smith, Douglas) (Entered: 10/15/2018)

10/16/2018

130 ORDER on the 129 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Dawn A Ellison for The GEO Group Inc, by Clerk William M McCool. (No document associated with this docket entry, text only.)

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CMG) (Entered: 10/16/2018)

10/16/2018

131 APPLICATION OF ATTORNEY Jerry Stouck FOR LEAVE TO APPEAR PRO HAC VICE for Defendant The GEO Group Inc, Counter Claimants The GEO Group Inc, The GEO Group Inc (Fee Paid) Receipt No. 0981-5509127 (Smith, Douglas) (Entered: 10/16/2018)

10/16/2018

132 ORDER on the 131 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Jerry Stouck for The GEO Group Inc, by Clerk William M McCool. (No document associated with this docket entry, text only.)

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CMG) (Entered: 10/16/2018)

11/06/2018

133 STIPULATION AND PROPOSED ORDER FOR RELIEF FROM CLASS NOTICE PLAN DEADLINE by parties re 127 Order on Stipulated Motion (Whitehead, Jamal) (Entered: 11/06/2018)

11/07/2018

134 SECOND STIPULATED MOTION FOR RELIEF FROM CLASS NOTICE PLAN DEADLINE. The deadline for submitting a proposed Class Notice and Notice Plan to the Court is extended to 1/8/19. Signed by Judge Robert J. Bryan. (JL) (Entered: 11/07/2018)

11/08/2018

135 ORDER of USCA (18-80095) as to the 116 Petition for Permission to Appeal under 23(f). Petitioner's motion for leave to file a reply in support of its petition (Docket Entry No. 8) is granted. The Clerk shall file the reply attached as an exhibit to Docket Entry No. 8. The court, in its discretion, denies the petition for permission to appeal the district court's August 6, 2018 order granting class action certification. See Fed. R. Civ. P. 23(f); Chamberlan v. Ford Motor Co., 402 F.3d 952 (9th Cir. 2005). (SP) (Entered: 11/09/2018)

12/10/2018

136 MANDATE OF USCA (18-35753) as to the 122 Notice of Appeal filed by The GEO Group Inc. Appellant's motion to dismiss this appeal voluntarily (docket #13) is granted. Fed. R. App. P. 42(b). This order served on the district court shall act as and for the mandate of this court. (GMR) (Entered: 12/12/2018)

12/17/2018

Proposed Class Notice and Notice Plan due 1/8/2019. (JL) (Entered: 12/17/2018)

01/08/2019 137 PROPOSED ORDER (Unsigned) re: Plaintiffs' Proposed Notice Plan (Whitehead, Jamal) (Entered: 01/08/2019)

01/09/2019 138 PLAINTIFFS' PROPOSED NOTICE PLAN AND ORDER, re 137 . Signed by Judge Robert J. Bryan. (JL) (Entered: 01/09/2019)

01/09/2019

Class Notice documents re 138 due on 1/29/2019. (JL) (Entered: 01/09/2019)

01/23/2019

139 APPLICATION OF ATTORNEY Michael Pusateri FOR LEAVE TO APPEAR PRO HAC VICE for Defendant The GEO Group Inc, Counter Claimant The GEO Group Inc (Fee Paid) Receipt No. 09815624049 (Smith, Douglas) (Entered: 01/23/2019)

01/23/2019

140 ORDER re 139 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Michael Pusateri for The GEO Group Inc by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 01/23/2019)

02/01/2019

141 STIPULATION AND PROPOSED ORDER RE LONG FORM CLASS NOTICE by parties re 138 Order (Attachments: # 1 Exhibit A)(Whitehead, Jamal) (Entered: 02/01/2019)

02/05/2019

142 STIPULATION AND ORDER REGARDING LONG FORM CLASS NOTICE (including Exhibit A, proposed long form notice). Signed by Judge Robert J. Bryan. (JL) (Entered: 02/05/2019)

02/05/2019

Deadline for parties to file proposed protective order regarding class list - 2/8/2019. (JL) (Entered: 02/05/2019)

02/15/2019

143 ORDER SETTING DEADLINE. Deadline for parties to file protective order approved by government regarding class list extended to 3/22/2019. Signed by Judge Robert J. Bryan. (JL) (Entered: 02/15/2019)

02/28/2019

144 STIPULATION to Extend Case Deadlines by parties (Attachments: # 1 Proposed Order)(Kim, William) Modified on 3/1/2019 to change to motion (JL). (Entered: 02/28/2019)

03/01/2019

145 ORDER RESETTING DEADLINES, granting 144 Stipulated Motion to Extend Case Deadlines. The Clerk is directed to issue a new scheduling order, setting trial to begin on March 2, 2020, and resetting all deadlines not passed. Signed by Judge Robert J. Bryan. (JL) (Entered: 03/01/2019)

03/01/2019

146 MINUTE ORDER SETTING TRIAL AND PRETRIAL DATES; Length of Trial: *FIFTEEN DAYS*. Jury Trial is RESET for 3/2/2020 at 09:30 AM in Courtroom A before Judge Robert J. Bryan. Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 9/4/2019, Motions due by 10/15/2019, Discovery completed by 11/6/2019, Dispositive motions due by 12/3/2019, Motions in Limine due by 2/5/2020, Pretrial Order due by 2/14/2020, Pretrial Conference set for 2/21/2020 at 08:30 AM in Courtroom A before Judge Robert J. Bryan. Trial briefs to be submitted by 2/21/2020, Proposed voir dire/jury instructions due by 2/21/2020. Entered as directed by Judge Robert J. Bryan. (TC) (Entered: 03/01/2019)

03/07/2019

147 NOTICE of Appearance by attorney Kristin Mariko Asai on behalf of Defendant The GEO Group Inc, Counter Claimants The GEO Group Inc, The GEO Group Inc. (Asai, Kristin) (Entered: 03/07/2019)

03/07/2019

148 MOTION for Protective Order , filed by Plaintiffs Fernando AguirreUrbina, Ugochukwu Goodluck Nwauzor. (Attachments: # 1 Proposed Order) Noting Date 3/15/2019, (Whitehead, Jamal) (Entered: 03/07/2019)

03/07/2019

149 DECLARATION of JAMAL N. WHITEHEAD filed by Plaintiff Fernando Aguirre-Urbina, Counter Defendant Ugochukwu Goodluck Nwauzor re 148 MOTION for Protective Order (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Whitehead, Jamal) (Entered: 03/07/2019)

03/07/2019

Attorneys J Matthew Donohue and Shannon Lea Armstrong added for The GEO Group Inc per 147 Notice of Appearance. (ERA) (Entered: 03/08/2019)

03/08/2019

150 PRAECIPE re 149 Declaration, OF JAMAL N. WHITEHEAD by Plaintiffs Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor (Attachments: # 1 Exhibit 1)(Whitehead, Jamal) (Entered: 03/08/2019)

03/08/2019

151 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Andrea D'Ambra for Defendant The GEO Group Inc, Counter Claimant The GEO Group Inc. (D'Ambra, Andrea) (Entered: 03/08/2019)

03/08/2019

152 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney William J Kim and Douglas Edward Smith for Defendant The GEO Group Inc, Counter Claimants The GEO Group Inc, The GEO Group Inc. (Smith, Douglas) (Entered: 03/08/2019)

03/08/2019

153 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Mark Emery for Defendant The GEO Group Inc, Counter Claimant The GEO Group Inc. (Emery, Mark) (Entered: 03/08/2019)

03/11/2019

154 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Scott A Schipma; Jerry Stouck; Dawn A Ellison and Michael Pusateri for Defendant The GEO Group Inc, Counter Claimants The GEO Group Inc, The GEO Group Inc. (Ellison, Dawn) (Entered: 03/11/2019)

03/13/2019

155 RESPONSE, by Defendant The GEO Group Inc, Counter Claimant The GEO Group Inc, to 148 MOTION for Protective Order . Oral Argument Requested. (Asai, Kristin) Modified on 3/20/2019 to change to motion for protective order (JL). (Entered: 03/13/2019)

03/13/2019

156 DECLARATION of Kristin Asai filed by Defendant The GEO Group Inc, Counter Claimant The GEO Group Inc re 148 MOTION for Protective Order (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Asai, Kristin) (Entered: 03/13/2019)

03/15/2019

157 REPLY, filed by Plaintiff Ugochukwu Goodluck Nwauzor, TO RESPONSE to 148 MOTION for Protective Order (Whitehead, Jamal) (Entered: 03/15/2019)

03/15/2019

158 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Charles A Deacon for Defendant The GEO Group Inc. (Deacon, Charles) (Entered: 03/15/2019)

03/18/2019

159 Unopposed MOTION to Waive Geographic Requirement in LCR 83.1 , filed by Defendant The GEO Group Inc, Counter Claimant The GEO Group Inc. (Attachments: # 1 Proposed Order) Noting Date 3/18/2019, (Asai, Kristin) (Entered: 03/18/2019)

03/20/2019

160 ORDER ON DEFENDANT/COUNTER CLAIMANT'S UNOPPOSED MOTION TO WAIVE GEOGRAPHIC REQUIREMENT IN LCR 83.1, granting 159 Motion. Signed by Judge Robert J. Bryan. (JL) (Entered: 03/20/2019)

03/20/2019

161 ORDER ON MOTIONS FOR A PROTECTIVE ORDER, granting 148 Motion for Protective Order; denying 155 Motion for Protective Order. Signed by Judge Robert J. Bryan. (JL) (Entered: 03/20/2019)

03/22/2019

162 APPLICATION OF ATTORNEY Carolyn Short FOR LEAVE TO APPEAR PRO HAC VICE for Defendant The GEO Group Inc, Counter Claimant The GEO Group Inc (Fee Paid) Receipt No. 09815698927 (Attachments: # 1 Exhibit Order from Judge Bryan)(Armstrong, Shannon) (Entered: 03/22/2019)

03/25/2019 163 PROTECTIVE ORDER. Signed by Judge Robert J. Bryan. (JL) (Entered: 03/25/2019)

03/25/2019

164 ORDER re 162 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Carolyn Short for The GEO Group Inc by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 03/25/2019)

04/05/2019

165 Joint STATUS REPORT by Defendant The GEO Group Inc, Counter Claimants The GEO Group Inc, The GEO Group Inc (Asai, Kristin) (Entered: 04/05/2019)

04/08/2019

166 ORDER ON JOINT STATUS REPORT, re 165 Status Report filed by The GEO Group Inc. Defendant ordered to produce the class list by 4/12/19; supplements to the class list due 4/29/19. Signed by Judge Robert J. Bryan. (JL) (Entered: 04/08/2019)

04/08/2019

Defendant ordered to produce class list by 4/12/2019. (JL) (Entered: 04/08/2019)

05/02/2019

167 MOTION to Dismiss, Stay or Consolidate Related Litigation , filed by Defendant The GEO Group Inc. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 5/24/2019, (Armstrong, Shannon) Modified on 5/3/2019 (GMR). (Entered: 05/02/2019)

05/14/2019

168 MINUTE ORDER Setting Hearing on 167 Motion to Dismiss, Stay or Consolidate Related Litigation: Motion Hearing set for 5/28/2019 at 10:00 AM in Courtroom A before Judge Robert J. Bryan. Entered as directed by Judge Robert J. Bryan. (TC) (Entered: 05/14/2019)

05/20/2019

169 RESPONSE, by Plaintiff Ugochukwu Goodluck Nwauzor, to 167 MOTION to Dismiss, Stay or Consolidate Related Litigation. (Whitehead, Jamal) (Entered: 05/20/2019)

05/22/2019

170 NOTICE TO COUNSEL re 168 Order Setting Hearing on Motion for 5/28/19 at 10:00 a.m. Authorized by Judge Robert J. Bryan. (JL) (Entered: 05/22/2019)

05/24/2019

171 REPLY, filed by Defendant The GEO Group Inc, TO RESPONSE to 167 MOTION to Dismiss, Stay or Consolidate Related Litigation (Armstrong, Shannon) Filed in this case in error, counsel will re-file in correct case Modified on 5/24/2019 (JF). (Entered: 05/24/2019)

05/24/2019

NOTICE of Docket Text Modification re 171 Reply to Response to Motion, : Document filed in wrong case in error, please disregard filing. (JF) (Entered: 05/24/2019)

05/24/2019

172 REPLY, filed by Defendant The GEO Group Inc, TO RESPONSE to 167 MOTION to Dismiss, Stay or Consolidate Related Litigation (Armstrong, Shannon) (Entered: 05/24/2019)

05/24/2019

173 DECLARATION of Kristin Asai filed by Defendant The GEO Group Inc re 167 MOTION to Dismiss, Stay or Consolidate Related Litigation (Attachments: # 1 Exhibit 1)(Armstrong, Shannon) (Entered: 05/24/2019)

05/28/2019 174 MINUTE ENTRY for proceedings held before Judge Robert J. BryanDep Clerk: Tyler Campbell; Pla Counsel: Jamal Whitehead, Andrew

Free, Devin Theriot-Orr, Marsha Chien, La Rond Baker, Andrea Brenneke, Lane Polozola; Def Counsel: Shannon Armstrong, Matt Donohue; CR: Barry Fanning; Time of Hearing: 10:00; Courtroom: A; Motion Hearing held on 5/28/2019 re 167 MOTION to Dismiss, Stay or Consolidate Related Litigation. Argument by counsel. Recess. Oral ruling: C17-5769RJB and C17-5806RJB to be consolidated for issues of liability as stated on the record. Trial date, pretrial conference, motions in limine, pretrial order, trial briefs, and proposed voir dire deadlines in C17-5806RJB to be reset to dates in C17-5769RJB. All other deadlines remain unchanged. 167 Motion is DENIED with respect to dismissing or staying the case, GRANTED with respect to consolidating with C17-5806RJB for liability only. (TC) (Entered: 05/28/2019)

05/28/2019 175 SUPPLEMENT TO ORAL RULING, re 174 Motion Hearing. Signed by Judge Robert J. Bryan. (JL) (Entered: 05/28/2019)

06/20/2019 176 ORDER regarding the inspection of the defendant's facility by Judge Theresa L Fricke. See order for details.(TW) (Entered: 06/20/2019)

08/01/2019

177 APPLICATION OF ATTORNEY Ashley Calhoun FOR LEAVE TO APPEAR PRO HAC VICE for Defendant The GEO Group Inc, Counter Claimants The GEO Group Inc, The GEO Group Inc (Fee Paid) Receipt No. 0981-5868607 (Mell, Joan) (Entered: 08/01/2019)

08/01/2019

178 APPLICATION OF ATTORNEY Christopher Eby FOR LEAVE TO APPEAR PRO HAC VICE for Defendant The GEO Group Inc, Counter Claimants The GEO Group Inc, The GEO Group Inc (Fee Paid) Receipt No. 0981-5868612 (Mell, Joan) (Entered: 08/01/2019)

08/01/2019

179 APPLICATION OF ATTORNEY Colin Barnacle FOR LEAVE TO APPEAR PRO HAC VICE for Defendant The GEO Group Inc, Counter Claimants The GEO Group Inc, The GEO Group Inc (Fee Paid) Receipt No. 0981-5868617 (Mell, Joan) (Entered: 08/01/2019)

08/01/2019

180 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney J Matthew Donohue; Carolyn Short; Shannon Lea Armstrong and Kristin Mariko Asai for Defendant The GEO Group Inc, Counter Claimants The GEO Group Inc, The GEO Group Inc. (Asai, Kristin) (Entered: 08/01/2019)

08/02/2019

181 ORDER on the 177 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Ashley E Calhoun for The GEO Group Inc, by Clerk William M McCool. (No document associated with this docket entry, text only.)

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the

event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d). (GMR) (Entered: 08/02/2019)

08/02/2019

182 ORDER on the 178 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Christopher J Eby for The GEO Group Inc, by Clerk William M McCool. (No document associated with this docket entry, text only.)

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(GMR) (Entered: 08/02/2019)

08/02/2019

183 ORDER on the 179 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Colin L Barnacle for The GEO Group Inc, by Clerk William M McCool. (No document associated with this docket entry, text only.)

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d). (GMR) (Entered: 08/02/2019)

08/22/2019 184 MEMORANDUM to File by Judge Robert J. Bryan. (TC) (Entered: 08/22/2019)

08/22/2019 185 STATEMENT of Interest by United States of America. (TC) (Entered: 08/22/2019)

08/28/2019

186 Stipulated MOTION for Extension of Expert Disclosure Deadlines, filed by Defendant The GEO Group Inc. Noting Date 8/29/2019, (Barnacle, Colin) (Entered: 08/28/2019)

08/29/2019

187 ORDER granting 186 Stipulated Motion. Expert Witness Disclosure/Reports due by 9/11/2019. Signed by Judge Robert J. Bryan. (JL) (Entered: 08/29/2019)

09/11/2019

188 DISCLOSURE OF EXPERT WITNESSES Filed by Plaintiff Ugochukwu Goodluck Nwauzor. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Whitehead, Jamal) Modified on 9/11/2019 (SP). (Entered: 09/11/2019)

09/11/2019

NOTICE of Docket Text Modification re 188 Disclosure of Expert Witnesses: stricken per phone call from counsel/filed in error. (SP) (Entered: 09/11/2019)

10/04/2019

189 NOTICE regarding Proposed Order in State of Washington v. The GEO Group, Inc (ECF 306-1) ; filed by Plaintiffs Fernando AguirreUrbina, Ugochukwu Goodluck Nwauzor, Counter Defendants Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor. (Attachments: # 1 Exhibit A - Email from ICE Associate Legal Advisor dated June 20, 2017, ICE FOIA Response 2018-ICLI-00052-3034-36, # 2 Exhibit B Email from ICE Associate Legal Advisor dated July 24, 2017, ICE FOIA Response 2018-ICLI-00052-5439, # 3 Exhibit C - Email from ICE Associate Legal Advisor dated June 6, 2018, ICE FOIA Response 2018-ICLI-00052-2739, # 4 Exhibit D - Email from ICE Associate Legal Advisor dated September 12, 2018, with attachments Statements of Government Interest in Wash v. GEO et al. (1.24.18).pdf and VWP Factual Background (July 2018).docx, ICE FOIA Response 2018-ICLI00052-3040, # 5 Exhibit E - Letter from GEO Executive David Venturella to Acting ICE Director Thomas Homan dated February 14, 2018, ICE FOIA Response 2018-ICLI-00052-2751-55, # 6 Exhibit F Email from ICE Associate Legal Advisor dated July 23, 2018 with attachments, ICE FOIA Response 2018-ICLI-00052-6053-61, # 7 Exhibit G - Letter from GEO CEO George Zoley to ICE Acting Deputy Director Peter Edge dated May 30, 2018, ICE FOIA Response 2018-ICLI-00052-3404, # 8 Exhibit H - Letter from ICE Acting Deputy Director Peter Edge to GEO CEO George Zoley dated July 9, 2018, ICE FOIA Response 2018-ICLI-00052-6062)(Free, R) (Entered: 10/04/2019)

10/04/2019

190 DECLARATION of R. Andrew Free re 189 Notice regarding Proposed Order in State of Washington v. The GEO Group, Inc (ECF 306-1) by Plaintiffs Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor, Counter Defendants Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor (Free, R) (Entered: 10/04/2019)

10/11/2019

191 Joint Stipulated MOTION for Extension of Pretrial Deadlines, filed by Defendant The GEO Group Inc. (Attachments: # 1 Proposed Order) Noting Date 10/11/2019, (Barnacle, Colin) (Entered: 10/11/2019)

10/11/2019

192 ORDER granting 191 Stipulated Motion for Extension of Pretrial Deadlines. Discovery Motions due by 10/31/2019, Discovery completed by 11/22/2019, Dispositive motions due by 12/16/2019 (adjusted to next court day, stipulation is to 12/15/19), Rebuttal Expert Disclosure/Reports due by 10/31/2019. Signed by Judge Robert J. Bryan. (JL) (Entered: 10/11/2019)

10/21/2019

193 LETTER from Judge Robert J. Bryan to all counsel regarding scheduling a Preliminary Pretrial Conference on 1/24/20. (JL) (Entered: 10/21/2019)

10/25/2019

194 NOTICE of Hearing: Preliminary Pretrial Conference set for 1/10/2020 at 10:30 AM in Courtroom A before Judge Robert J. Bryan. (TC) (Entered: 10/25/2019)

10/31/2019

195 MOTION to Quash Subpoenas for Deposition, filed by Movant State of Washington. (Attachments: # 1 Proposed Order) Noting Date 11/8/2019, (Chien, Marsha) (Entered: 10/31/2019)

10/31/2019

196 DECLARATION of Marsha Chien filed by Movant State of Washington re 195 MOTION to Quash Subpoenas for Deposition (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Chien, Marsha) (Entered: 10/31/2019)

11/06/2019

197 RESPONSE, by Defendant The GEO Group Inc, Counter Claimants The GEO Group Inc, The GEO Group Inc, to 195 MOTION to Quash Subpoenas for Deposition. (Mell, Joan) (Entered: 11/06/2019)

11/06/2019

198 DECLARATION of Colin Barnacle filed by Defendant The GEO Group Inc, Counter Claimants The GEO Group Inc, The GEO Group Inc re 195 MOTION to Quash Subpoenas for Deposition (Mell, Joan) (Entered: 11/06/2019)

11/07/2019

199 APPLICATION OF ATTORNEY Adrienne Scheffey FOR LEAVE TO APPEAR PRO HAC VICE for Defendant The GEO Group Inc, Counter Claimants The GEO Group Inc, The GEO Group Inc (Fee Paid) Receipt No. 0981-6000880 (Mell, Joan) (Entered: 11/07/2019)

11/07/2019

200 ORDER re 199 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Adrienne Scheffey for The GEO Group Inc, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 11/07/2019)

11/07/2019

201 APPLICATION OF ATTORNEY Allison Angel FOR LEAVE TO APPEAR PRO HAC VICE for Defendant The GEO Group Inc, Counter Claimants The GEO Group Inc, The GEO Group Inc (Fee Paid) Receipt No. 0981-6001461 (Mell, Joan) (Entered: 11/07/2019)

11/07/2019

202 ORDER re 201 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Allison N Angel for The GEO Group Inc, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 11/07/2019)

11/08/2019

203 REPLY, filed by Movant State of Washington, TO RESPONSE to 195 MOTION to Quash Subpoenas for Deposition (Polozola, Lane) (Entered: 11/08/2019)

11/08/2019

204 DECLARATION of Lane Polozola filed by Movant State of Washington re 195 MOTION to Quash Subpoenas for Deposition (Attachments: # 1 Exhibit A)(Polozola, Lane) (Entered: 11/08/2019)

11/14/2019

205 ORDER ON STATE'S MOTION FOR PROTECTIVE ORDER QUASHING SUBPOENAS FOR DEPOSITION, granting in part and denying in part 195 Motion to Quash. Signed by Judge Robert J. Bryan. (JL) (Entered: 11/14/2019)

11/18/2019

206 NOTICE of Appearance by attorney Rebecca Jane Roe on behalf of Plaintiffs Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor. (Roe, Rebecca) (Entered: 11/18/2019)

11/22/2019

207 Stipulated MOTION for Relief from Discovery Deadline, filed by Defendant The GEO Group Inc. (Attachments: # 1 Proposed Order) Noting Date 11/22/2019, (Barnacle, Colin) (Entered: 11/22/2019)

11/25/2019

208 ORDER GRANTING STIPULATED MOTION FOR RELIEF OF DISCOVERY DEADLINE, granting 207 Motion for Relief. Dispositive motions due by 1/2/2020. Signed by Judge Robert J. Bryan. (JL) (Entered: 11/25/2019)

12/12/2019

209 MOTION to Amend 138 Order, RE NOTICE PLAN, filed by Plaintiff Ugochukwu Goodluck Nwauzor. Noting Date 12/27/2019, (Whitehead, Jamal) (Entered: 12/12/2019)

12/12/2019

210 DECLARATION of JAMAL N. WHITEHEAD filed by Plaintiff Ugochukwu Goodluck Nwauzor re 209 MOTION to Amend 138 Order, RE NOTICE PLAN (Attachments: # 1 Exhibit 1)(Whitehead, Jamal) (Entered: 12/12/2019)

12/12/2019

211 PROPOSED ORDER (Unsigned) re 209 MOTION to Amend 138 Order, RE NOTICE PLAN (Whitehead, Jamal) (Entered: 12/12/2019)

12/23/2019

212 MINUTE ORDER. The Court will hear brief oral argument on Plaintiff's Motion to Strike Jury Demand (pending in C17-5806RJB, State v GEO, Dkt. 342 ) at the Pretrial Conference set for Friday, January 10, 2020. Authorized by Judge Robert J. Bryan. (JL) (Entered: 12/23/2019)

12/23/2019

213 RESPONSE, by Defendant The GEO Group Inc, to 209 MOTION to Amend 138 Order, RE NOTICE PLAN. (Barnacle, Colin) (Entered: 12/23/2019)

12/27/2019

214 REPLY, filed by Plaintiffs Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor, TO RESPONSE to 209 MOTION to Amend 138 Order, RE NOTICE PLAN (Whitehead, Jamal) (Entered: 12/27/2019)

12/27/2019

215 Second DECLARATION of JAMAL N. WHITEHEAD filed by Plaintiffs Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor re 209 MOTION to Amend 138 Order, RE NOTICE PLAN (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 10)(Whitehead, Jamal) (Entered: 12/27/2019)

12/31/2019

216 ORDER REGARDING 209 MOTION to Amend 138 Order, RE NOTICE PLAN; by Judge Robert J. Bryan. Motion re-noted to 1/10/2020. (TC) (Entered: 12/31/2019)

01/02/2020

217 MOTION to Exclude Expert Testimony of Jeffrey Munson, filed by Defendant The GEO Group Inc. Noting Date 1/17/2020, (Barnacle, Colin) (Entered: 01/02/2020)

01/02/2020

218 DECLARATION of Colin L. Barnacle filed by Defendant The GEO Group Inc re 217 MOTION to Exclude Expert Testimony of Jeffrey Munson (Attachments: # 1 Exhibit A - Excerpts of Munson Deposition, # 2 Exhibit B - Expert Report of Munson, # 3 Exhibit C - Excerpts of Kimble Deposition)(Barnacle, Colin) (Entered: 01/02/2020)

01/02/2020

219 MOTION to Exclude Expert Testimony of Christopher Strawn, filed by Defendant The GEO Group Inc. Noting Date 1/17/2020, (Barnacle, Colin) (Entered: 01/02/2020)

01/02/2020

220 DECLARATION of Colin L. Barnacle filed by Defendant The GEO Group Inc re 219 MOTION to Exclude Expert Testimony of Christopher Strawn (Attachments: # 1 Exhibit A - Expert Report of Strawn, # 2 Exhibit B - Excerpts of Strawn Deposition)(Barnacle, Colin) (Entered: 01/02/2020)

01/02/2020

221 MOTION for Summary Judgment , filed by Plaintiff Ugochukwu Goodluck Nwauzor. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 1/24/2020, (Whitehead, Jamal) Modified on 1/6/2020, sealed per filers request due to personal identifiers, to be re-filed properly (ERA). (Entered: 01/02/2020)

01/02/2020

222 Stipulated MOTION to Seal , filed by Plaintiff Ugochukwu Goodluck Nwauzor. Noting Date 1/2/2020, (Whitehead, Jamal) (Entered: 01/02/2020)

01/02/2020

223 DECLARATION of Jamal N. Whitehead filed by Plaintiff Ugochukwu Goodluck Nwauzor re 221 MOTION for Summary Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II)(Whitehead, Jamal) (Entered: 01/02/2020)

01/02/2020

224 SEALED DOCUMENT In Support of Plaintiffs' Motion for Summary Judgment by Plaintiff Ugochukwu Goodluck Nwauzor re 222 Stipulated MOTION to Seal , 221 MOTION for Summary Judgment (Attachments: # 1 Exhibit B, # 2 Exhibit D, # 3 Exhibit J, # 4 Exhibit O, # 5 Exhibit P, # 6 Exhibit Q, # 7 Exhibit T, # 8 Exhibit W, # 9 Exhibit Z, # 10 Exhibit AA, # 11 Exhibit BB, # 12 Exhibit CC, # 13 Exhibit DD, # 14 Exhibit EE, # 15 Exhibit FF)(Whitehead, Jamal) (Entered: 01/02/2020)

01/02/2020 225 PROPOSED ORDER (Unsigned) re 217 MOTION to Exclude Expert Testimony of Jeffrey Munson (Barnacle, Colin) (Entered: 01/02/2020)

01/02/2020

226 PROPOSED ORDER (Unsigned) re 219 MOTION to Exclude Expert Testimony of Christopher Strawn (Barnacle, Colin) (Entered: 01/02/2020)

01/02/2020

227 MOTION for Summary Judgment , filed by Defendant The GEO Group Inc. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 1/24/2020, (Barnacle, Colin) (Entered: 01/02/2020)

01/02/2020

228 DECLARATION of Bruce Scott filed by Defendant The GEO Group Inc re 227 MOTION for Summary Judgment (Barnacle, Colin) (Entered: 01/02/2020)

01/02/2020

229 DECLARATION of Colin Barnacle filed by Defendant The GEO Group Inc re 227 MOTION for Summary Judgment (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I, # 9 Exhibit J, # 10 Exhibit K, # 11 Exhibit L)(Barnacle, Colin) (Entered: 01/02/2020)

01/02/2020

230 SEALED DOCUMENT Exhibits A and M to Declaration of Colin Barnacle ISO GEO's Motion for Summary Judgment by Defendant The GEO Group Inc re 222 Stipulated MOTION to Seal , 227 MOTION for Summary Judgment , 229 Declaration, (Attachments: # 1 Exhibit A-1, # 2 Exhibit A-2, # 3 Exhibit M)(Barnacle, Colin) (Entered: 01/02/2020)

01/06/2020 231 ORDER granting 222 Motion to Seal. Signed by Judge Robert J. Bryan. (JL) (Entered: 01/06/2020)

01/07/2020 232 PROPOSED AGENDA FOR 10 JANUARY 2020 CONFERENCE. signed by Judge Robert J. Bryan. (JL) (Entered: 01/07/2020)

01/07/2020

233 Redacted MOTION for Summary Judgment , filed by Plaintiff Ugochukwu Goodluck Nwauzor. Oral Argument Requested. Noting Date 1/24/2020, (Whitehead, Jamal) (Entered: 01/07/2020)

01/10/2020

234 MINUTE ENTRY for proceedings held before Judge Robert J. BryanDep Clerk: Tyler Campbell; Pla Counsel: Marsha Chien, Andrea Brenneke, Lane Polozola, Jamal Whitehead, Devin Theriot-Orr, Andrew Free; Def Counsel: Colin Barnacle, Andrienne Scheffey, Joan Mell; CR: Angela Nicolavo; Time of Hearing: 10:30; Courtroom: A;Preliminary Pretrial Conference held on 1/10/2020. Discussion of claims. Trial procedures discussed. Oral argument on 342 in C17-5806. Discussion re 209 Motion. Plaintiffs' counsel to submit proposed order re 209 Motion. Discovery issues discussed. Crossposted in C17-5806. (TC) (Entered: 01/10/2020)

01/13/2020

235 MINUTE ORDER. On January 13, 2020, Plaintiffs sent the attached "Proposed Order Granting Plaintiffs' Motion to Amend Notice Plan" to the Court's Proposed Orders email box. Responses or objections, if any, should be filed in CM/ECF by 12:00 p.m. on Wednesday, January 15, 2020. Authorized by Judge Robert J. Bryan. (JL) (Entered: 01/13/2020)

01/13/2020

236 RESPONSE, by Plaintiffs Fernando Aguirre-Urbina, Ugochukwu Goodluck Nwauzor, to 219 MOTION to Exclude Expert Testimony of Christopher Strawn. (Theriot-Orr, Devin) (Entered: 01/13/2020)

01/13/2020

237 RESPONSE, by Plaintiff Ugochukwu Goodluck Nwauzor, to 217 MOTION to Exclude Expert Testimony of Jeffrey Munson. (Whitehead, Jamal) (Entered: 01/13/2020)

01/13/2020

238 DECLARATION of Jamal N. Whitehead filed by Plaintiff Ugochukwu Goodluck Nwauzor re 217 MOTION to Exclude Expert Testimony of Jeffrey Munson (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Whitehead, Jamal) (Entered: 01/13/2020)

01/15/2020

239 RESPONSE by Defendant The GEO Group Inc re 235 Minute Order, Defendant The GEO Group, Inc.'s Objections to Plaintiffs' Proposed Amended Notice Plan (Barnacle, Colin) (Entered: 01/15/2020)

01/15/2020

240 DECLARATION of Colin L. Barnacle re 239 Response (non motion) by Defendant The GEO Group Inc (Attachments: # 1 Exhibit A TRAC March 2016, # 2 Exhibit B - TRAC September 2017, # 3 Exhibit A - TRAC February 2018)(Barnacle, Colin) (Entered: 01/15/2020)

01/15/2020

241 ORDER on 209 Motion to Amend Notice Plan and Renoting Motions for Summary Judgment signed by Judge Robert J. Bryan. Motions 221 , 227 , and 233 renoted for 2/7/2020. (TC) (Entered: 01/15/2020)

01/15/2020 242 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Preliminary Pretrial Conference held on 1/10/2020 before Judge Robert J. Bryan.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Angela Nicolavo, angela_nicolavo@wawd.uscourts.gov, 253-882-3832.

Release of Transcript Restriction set for 4/14/2020, (AN) (Entered: 01/15/2020)

01/15/2020

243 MOTION Leave to File Amicus Brief re 227 MOTION for Summary Judgment , filed by Amicus Immigration Reform Law Institute. (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Proposed Order) Noting Date 1/31/2020, (Stephens, Richard) (Entered: 01/15/2020)

01/16/2020 244 NOTICE of Hearing: Telephone Conference set for 1/21/2020 at 09:15 AM before Judge Robert J. Bryan. (TC) (Entered: 01/16/2020)

01/17/2020

245 ORDER DENYING MOTION OF IMMIGRATION REFORM LAW INSTITUTE FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE, denying 243 Motion. Signed by Judge Robert J. Bryan. (JL) (Entered: 01/17/2020)

01/17/2020

246 REPLY, filed by Defendant The GEO Group Inc, TO RESPONSE to 217 MOTION to Exclude Expert Testimony of Jeffrey Munson (Barnacle, Colin) (Entered: 01/17/2020)

01/17/2020 247 REPLY, filed by Defendant The GEO Group Inc, TO RESPONSE to 219 MOTION to Exclude Expert Testimony of Christopher Strawn (Barnacle, Colin) (Entered: 01/17/2020)

01/21/2020

248 MINUTE ENTRY for proceedings held before Judge Robert J. BryanDep Clerk: Tyler Campbell; Pla Counsel: Jamal Whitehead, Marsha Chien; Def Counsel: Colin Barnacle, Joan Mell, Adrienne Scheffey; CR: Nickie Drury; Time of Hearing: 9:15; Telephone Conference held on 1/21/2020. Class notice, trial schedules, and de-consolidation of cases discussed. Order to be issued. Cross-posted to C17-5806. (TC) (Entered: 01/21/2020)

01/21/2020

249 ORDER RESETTING TRIAL DATE AND OTHER DEADLINES, renoting 227 MOTION for Summary Judgment , 233 Redacted MOTION for Summary Judgment , 221 MOTION for Summary Judgment to 4/1/20. Jury Trial is set for 4/13/2020 at 09:30 AM in Courtroom A before Judge Robert J. Bryan. Motions in Limine due by 3/16/2020, Pretrial Order due by 3/27/2020, Pretrial Conference set for 4/3/2020 at 08:30 AM in Courtroom A before Judge Robert J. Bryan. Trial briefs to be submitted by 4/3/2020, Proposed voir dire/jury instructions due by 4/3/2020, Signed by Judge Robert J. Bryan. Copy of this Order also posted in State v GEO, 17-5806RJB. (JL) (Entered: 01/21/2020)

01/21/2020

250 ORDER (copy of ORDER ON STATE'S MOTION TO STRIKE GEO'S JURY DEMAND AND PROCEDURAL ORDER, granting in part and denying in part Motion to Strike in case State v GEO, 175806RJB, Dkt. 342) Signed by Judge Robert J. Bryan. (JL) (Entered: 01/21/2020)

01/24/2020

251 ORDER DENYING DEFENDANT THE GEO GROUP, INC.'S MOTION TO EXCLUDE EXPERT TESTIMONY OF JEFFREY MUNSON, denying 217 Motion to Exclude. Signed by Judge Robert J. Bryan. (JL) (Entered: 01/24/2020)

01/24/2020

252 ORDER DENYING WITHOUT PREJUDICE DEFENDANT THE GEO GROUP, INC.'S MOTION TO EXCLUDE EXPERT TESTIMONY OF CHRISTOPHER STRAWN, denying 219 Motion to Exclude. Signed by Judge Robert J. Bryan. (JL) (Entered: 01/24/2020)

01/27/2020

253 Stipulated MOTION Re Amended Notice Plan and Class Notices, filed by Plaintiff Ugochukwu Goodluck Nwauzor. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) Noting Date 1/27/2020, (Whitehead, Jamal) (Entered: 01/27/2020)

01/30/2020

254 STIPULATION AND ORDER REGARDING AMENDED NOTICE PLAN AND CLASS NOTICES, granting 253 Stipulated Motion. Signed by Judge Robert J. Bryan. (JL) (Entered: 01/30/2020)

02/03/2020

255 MINUTE ORDER RESETTING DEADLINE. Motions in Limine due by 3/12/2020. Authorized by Judge Robert J. Bryan. (JL) (Entered: 02/03/2020)

 
 Case 3:17-cv-05769 Document 1 Filed 09/26/17 Page 1 of 6

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT TACOMA 10

11

CHAO CHEN, individually and on behalf of all those similarly situated,

No.

12
13 v.
14

Plaintiff,

CLASS ACTION COMPLAINT FOR DAMAGES

15 THE GEO GROUP, INC., a Florida corporation,

16 Defendant.
17

18

I. NATURE OF ACTION

19

1.1. Plaintiff brings this class action on behalf of all civil immigration detainees

20 who performed work for The GEO Group, Inc. (“GEO”) at its Northwest Detention Center

21 (“NWDC”) in Tacoma, Washington at any time during the three years prior to the filing of
22
this complaint and thereafter. 23

24

1.2. Plaintiff seeks to recover wages under the Washington Minimum Wage Act

25 (“MWA”), RCW 49.46, et seq., as well as other damages allowable under state law, for the

26 wages that GEO denied him and the class he represents.

CLASS ACTION COMPLAINT FOR DAMAGES  1

SCHROETER GOLDMARK & BENDER
810 Third Avenue ● Suite 500 ● Seattle, WA 98104 Phone (206) 622-8000 ● Fax (206) 682-2305

Case 3:17-cv-05769 Document 1 Filed 09/26/17 Page 2 of 6

1

II. JURISDICTION AND VENUE

2

2.1. This Court has jurisdiction of Plaintiff’s claims pursuant to

3 28 U.S.C. § 1332(d). The class that Plaintiff proposes to represent includes more than 100

4 members, one or more members of the putative class are citizens of a foreign state or a
5 different State than Defendant, and the amount in controversy in the matter exceeds the sum
6
of $5,000,000. 7

8

2.2. Venue is proper in this district because all or a substantial part of the relevant

9 acts and omissions alleged herein took place in Pierce County in the Western District of

10 Washington.

11

III. PARTIES

12

3.1. Plaintiff Chao Chen resides in Renton, Washington, and was detained at

13 NWDC in Tacoma, Washington, from October 2014 until February 2016. Mr. Chen is a
14
citizen of the People’s Republic of China, but has been a lawful permanent resident of the 15

16 United States since the 1980s.

17

3.2. Defendant GEO is a for-profit corporation incorporated under the laws of

18 Florida and transacting business in Pierce County, Washington. GEO is an employer under

19 the MWA.
20 IV. FACTUAL ALLEGATIONS
21 4.1. GEO is a for-profit corporation providing correctional, detention, and
22 community reentry services. GEO’s 2016 revenues were over $2 billion, and its stock is
23
24 publicly traded on the New York Stock Exchange.

25

4.2. Since 2005, GEO has owned and operated NWDC, which is a 1,500 bed

26 immigration detention facility in Tacoma, Washington.

CLASS ACTION COMPLAINT FOR DAMAGES  2

SCHROETER GOLDMARK & BENDER
810 Third Avenue ● Suite 500 ● Seattle, WA 98104 Phone (206) 622-8000 ● Fax (206) 682-2305

Case 3:17-cv-05769 Document 1 Filed 09/26/17 Page 3 of 6

1

4.3. GEO contracts with the U.S. Immigration and Customs Enforcement (“ICE”)

2 for the detention of adult civil detainees, who are awaiting resolution of various immigration

3 matters. GEO’s contract with ICE requires GEO to comply with state and local laws.

4 4.4. Rather than hire from the local workforce, GEO relies upon captive detainee
5 workers to clean, maintain, and operate NWDC.
6

7

4.5. GEO’s NWDC Detainee Handbook describes detainee work assignments as

8 including kitchen and laundry work, as well as recreation/library/barber and janitorial

9 services. The Handbook refers to these various tasks as “work” and a “job,” and references

10 “wages earned” by detainee “workers.”

11

4.6. The detainee workers are “employees,” and GEO is an “employer” under

12 Washington’s minimum wage laws. GEO employed and continues to employ the detainee
13

workers by engaging, suffering, or permitting them to work on its behalf. 14

15

4.7. For all of the labor they perform, GEO pays each detainee worker only $1 per

16 day, regardless of the number of hours they worked.

17

4.8. In some cases, GEO does not pay detainee workers at all, compensating them

18 instead with more and better food than the facility’s standard fare.
19 4.9. GEO does not pay and has not paid detainee workers the state minimum wage
20 for the hours they worked at NWDC.
21 4.10. Plaintiff has performed work for GEO at NWDC and has not been paid the
22
23 state minimum wage for the work he has performed.

24

4.11. The current hourly minimum wage in Washington is $11 per hour.

25

4.12. GEO’s pay policies violate Washington minimum wage laws.

26

CLASS ACTION COMPLAINT FOR DAMAGES  3

SCHROETER GOLDMARK & BENDER
810 Third Avenue ● Suite 500 ● Seattle, WA 98104 Phone (206) 622-8000 ● Fax (206) 682-2305

Case 3:17-cv-05769 Document 1 Filed 09/26/17 Page 4 of 6

1

V. CLASS ALLEGATIONS

2

5.1. Plaintiff seeks to represent all civil immigration detainees who perform or

3 have performed work for GEO at NWDC at any time during the three years prior to the filing

4 of this complaint and thereafter.
5 5.2. This action is properly maintainable as a class action under Fed. R. Civ. P.
6
23(a) and (b)(3). 7

8

5.3. Pursuant to Rule 23(a)(1), the class as described is so numerous it is

9 impracticable to join all of the class members as named Plaintiffs.

10

5.4. Pursuant to Rule 23(a)(2), there are common questions of law and fact

11 including, but not limited to, whether (a) GEO is an “employer” under the MWA, (b) the

12 detainee workers are “employees” under the MWA, and (c) whether GEO violated the MWA
13 by failing to pay detainee workers the statutory minimum wage.
14

15

5.5. Pursuant to Rule 23(a)(3), the named Plaintiff’s claims are typical of the

16 claims of all class members and of GEO’s anticipated defenses to their claims.

17

5.6. The named Plaintiff will fairly and adequately protect the interests of the class

18 as required by Rule 23(a)(4).

19

5.7. Pursuant to Rule 23(b)(3), class certification is appropriate here because

20 questions of law or fact common to members of the class predominate over any questions
21 affecting only individual members and because a class action is superior to other available
22

23 methods for the fair and efficient adjudication of this controversy.

24

VI. LEGAL CLAIM

25

VIOLATION OF THE WASHINGTON MINIMUM WAGE ACT

26

6.1. Plaintiff and the proposed class members are “employees” under

CLASS ACTION COMPLAINT FOR DAMAGES  4

SCHROETER GOLDMARK & BENDER
810 Third Avenue ● Suite 500 ● Seattle, WA 98104 Phone (206) 622-8000 ● Fax (206) 682-2305

Case 3:17-cv-05769 Document 1 Filed 09/26/17 Page 5 of 6

1 RCW 49.46.010(3).

2

6.2. Defendant is an “employer” within the meaning of RCW 49.46.010(4).

3

6.3. Defendant’s practice of paying subminimum wages to Plaintiff and the

4 proposed class members violates RCW 49.46.020.
5 6.4. Plaintiff and the proposed class have been harmed by Defendant’s practice of
6

7 paying subminimum wages, and they are entitled to damages in amounts to be proven at trial.

8

VII. RELIEF REQUESTED

9

In light of the above, Plaintiff prays that the Court grant him the following relief:

10

1. Certify this case as a class action;

11

2. Damages for lost wages in amounts to be proven at trial;

12 3. Attorneys’ fees and costs pursuant to RCW 49.46.090 and RCW 49.48.030;
13 4. Prejudgment interest; and
14

15

5. Such other relief as is just and proper.

16

DATED this 26th day of September, 2017.

17

SCHROETER GOLDMARK & BENDER

18

s/ Jamal N. Whitehead

19

Adam J. Berger, WSBA #20714

20

Lindsay L. Halm, WSBA #37141

Jamal N. Whitehead, WSBA #39818

21

810 Third Avenue, Suite 500

Seattle, WA 98104

22

Tel: (206) 622-8000

23

Fax: (206) 682-2305 berger@sgb-law.com

24

halm@sgb-law.com

whitehead@sgb-law.com

25

26

CLASS ACTION COMPLAINT FOR DAMAGES  5

SCHROETER GOLDMARK & BENDER
810 Third Avenue ● Suite 500 ● Seattle, WA 98104 Phone (206) 622-8000 ● Fax (206) 682-2305

Case 3:17-cv-05769 Document 1 Filed 09/26/17 Page 6 of 6

1

THE LAW OFFICE OF R. ANDREW FREE

2

/s Andrew Free

3

Andrew Free (Pro Hac Vice application to be filed)

4

PO Box 90568

Nashville, TN 37209

5

Tel: (844) 321-3221

Fax: (615) 829-8959

6

andrew@immigrantcivilrights.com

7

8

SUNBIRD LAW, PLLC

9

/s Devin T. Theriot-Orr

10

Devin T. Theriot-Orr, WSBA # 33995

11

1001 Fourth Avenue, Suite 3200 Seattle, WA 98154-1003

12

Tel: (206) 962-5052

Fax: (206) 681-9663

13

devin@sunbird.law

14

Attorneys for Plaintiff

15

16

17

18

19

20

21

22

23

24

25

26

CLASS ACTION COMPLAINT FOR DAMAGES  6

SCHROETER GOLDMARK & BENDER
810 Third Avenue ● Suite 500 ● Seattle, WA 98104 Phone (206) 622-8000 ● Fax (206) 682-2305

 
 Case 3:17-cv-05769-RJB Document 28 Filed 12/06/17 Page 1 of 15

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT TACOMA

10 CHAO CHEN,
11

12

v.

Plaintiff,

13

THE GEO GROUP, INC.,

14

Defendant.

15

CASE NO. 3:17-cv-05769-RJB
ORDER ON DEFENDANT THE GEO GROUP, INC.’S MOTION TO DISMISS CLASS ACTION COMPLAINT FOR DAMAGES

16

17 THIS MATTER comes before the Court on Defendant The GEO Group, Inc.’s Motion to
18 Dismiss Class Action Complaint for Damages. Dkt. 8. The Court has considered Defendant’s
19 motion, Plaintiff Chao Chen’s Response, Defendant’s Reply, the Complaint, and the remainder
20 of the file herein. Dkts. 1, 15, 16. The Court also considered oral argument held in open court on
21 November 20, 2017.
22 Mr. Chen was a detainee at the Northwest Detention Center in Tacoma, Washington, a
23 facility that GEO operates under a contract with United States Immigration and Customs
24

ORDER ON DEFENDANT THE GEO GROUP, INC.’S MOTION TO DISMISS CLASS ACTION COMPLAINT FOR DAMAGES - 1

Case 3:17-cv-05769-RJB Document 28 Filed 12/06/17 Page 2 of 15

1 Enforcement (ICE), a division of the Department of Homeland Security. GEO uses detainees,

2 including Mr. Chen, to assist in operating the facility under a Voluntary Work Program. In

3 exchange for their work, GEO compensates detainees $1 per day.

4

The Complaint alleges that Mr. Chen is entitled to compensation of $11 per hour because

5 he is an “employee” as defined by the Washington State Minimum Wage Act. Defendant’s

6 motion seeks dismissal under Fed. R. Civ. P. 12(b)(6) under two theories: (1) State law is

7 preempted, and (2) the Complaint fails to state a claim that detainees, including Mr. Chen, are

8 “employees” deserving State minimum wage protections.

9 I. BACKGROUND

10

A. Facts.

11

1. The Complaint.

12

The following facts alleged in the Complaint are taken as true for purposes of

13 Defendant’s Fed. R. Civ. P. 12(b)(6) motion.

14

GEO, a private corporation, has owned and operated the Northwest Detention Center, a

15 1,500 bed ICE facility, since 2005. Dkt. 1 at ¶4.2. Northwest Detention Center detainees include

16 Mr. Chen, who was detained pending immigration proceedings from October 2014 until

17 February 2016. Id. at ¶3.1. Mr. Chen is a citizen of the People’s Republic of China, but has been

18 a lawful permanent resident of the United States since the 1980s. Id. at ¶3.1. GEO relies upon

19 detainees for its grounds maintenance, cooking, laundry, cleaning, and other services. Id. at 20 ¶¶4.4, 4.5. GEO has compensated detainees, including Mr. Chen, at $1 per day. Id. at ¶¶4.7, 4.8.

21 GEO has in some cases alternatively compensated detainees with more and better food. Id.

22

Washington’s minimum wage is $11 an hour. Dkt. 1 at ¶4.11. The Complaint alleges that

23 Mr. Chen is entitled to compensation at that rate. Id. at ¶4.11.

24

ORDER ON DEFENDANT THE GEO GROUP, INC.’S MOTION TO DISMISS CLASS ACTION COMPLAINT FOR DAMAGES - 2

Case 3:17-cv-05769-RJB Document 28 Filed 12/06/17 Page 3 of 15

1

The Complaint seeks damages for lost wages, fees, and costs1 on behalf of a proposed

2 class, including Mr. Chen and others similarly situated. Dkt. 1 at ¶6.4.

3

2. Extra-pleadings.

4 The Contract and Voluntary Work Program.

5

According to Defendant, GEO operates the Northwest Detention Center by “a complex

6 statutory, regulatory, and contractual relationship” with ICE. Dkt. 8 at 8. See Dkt. 1-1 at ¶4.3.

7 The contract central to the GEO-ICE relationship (“the Contract”2) sets out terms for a ten-year

8 operation of the facility. Dkt. 19 at 47. The Contract requires of GEO, inter alia, that “[d]etainee

9 labor shall be used in accordance with the detainee work plan developed by the Contractor, and

10 will adhere to the ICE PBNDS [Performance-Based National Detention Standards] on Voluntary

11 Work Program.” Id. at 86. See also, id. at 49. Further, “the detainee work program shall not

12 conflict with any other requirements of the contract and must comply with all applicable laws

13 and regulations.” Id.

14

The Voluntary Work Program articulates standards, inter alia, prohibiting discrimination,

15 accommodating disabilities, limiting work to “8 hours daily, 40 hours weekly,” and

16 compensating detainees. 2011 Performance-Based National Detention Standards, Section 5.8,

17 Voluntary Work Program, available online at http://www.ice.gov/detention-standards/2011/ (last

18 accessed Nov. 30, 2017). The detainee compensation provision of the Voluntary Work Program

19 states:

20

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. The

21

22 1 Compare to the companion case, State of Washington v. The GEO Group Inc., Cause No. 3:17-cv-05806-RJB, Dkt.
1-1 at 7 (seeking injunctive and declaratory relief and an award for unjust enrichment).
23 2 Only a redacted version of the Contract has been considered, because the full contract, which redacts pricing
information, is not part of the record. See Dkt. 19. Whether the Contract should be sealed, redacted, or produced in
24 full is the subject of a pending motion. Dkt. 20.

ORDER ON DEFENDANT THE GEO GROUP, INC.’S MOTION TO DISMISS CLASS ACTION COMPLAINT FOR DAMAGES - 3

Case 3:17-cv-05769-RJB Document 28 Filed 12/06/17 Page 4 of 15

1

facility shall have an established system that ensures detainees receive the pay owed them

before being transferred or released.

2

Id.

3

Irrelevant information.

4

Defendant highlights facts surrounding the criminal conviction forming the basis for

5

removal proceedings against Mr. Chen. Dkt. 8 at 9. These details are not relevant to resolving

6

Defendant’s motion.

7

B. Defendant’s Motion to Dismiss.

8

Defendant seeks dismissal under Fed. R. Civ. P. 12(b)(6) on two grounds, preemption

9

and failure to state a claim. Concerning preemption, Defendant argues that the State’s minimum

10

wage provision is preempted by (1) express preemption, through 8 U.S.C. §1324a(h)(2), a

11

provision of the Immigration Reform and Control Act (IRCA), (2) field preemption, because

12

Congress has occupied the field of immigration detention, which includes regulating detainee

13

pay, and (3) conflict/obstacle preemption, because requiring GEO to follow the State’s minimum

14

wage creates a clear conflict between state and federal law and frustrates ICE purposes and

15

objectives. Dkt. 8 at 15-22. Defendant argues, in the alternative, that the Complaint fails to state

16

a claim that detainees, including Mr. Chen, are “employees” deserving State minimum wage

17

protections. Id. at 23-29.

18

II. STANDARD UNDER FED. R. CIV. P. 12(B)(6)

19

Fed. R. Civ. P. 12(b) motions to dismiss may be based on either the lack of a cognizable

20

legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri

21

v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken

22

as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d

23

1295 (9th Cir. 1983). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not

24

ORDER ON DEFENDANT THE GEO GROUP, INC.’S MOTION TO DISMISS CLASS ACTION COMPLAINT FOR DAMAGES - 4

Case 3:17-cv-05769-RJB Document 28 Filed 12/06/17 Page 5 of 15

1 need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement

2 to relief requires more than labels and conclusions, and a formulaic recitation of the elements of

3 a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 (2007)

4 (internal citations omitted). “Factual allegations must be enough to raise a right to relief above

5 the speculative level, on the assumption that all the allegations in the complaint are true (even if

6 doubtful in fact).” Id. at 555. The complaint must allege “enough facts to state a claim to relief

7 that is plausible on its face.” Id. at 547.

8

Where a state law claim is preempted by federal law, dismissal may be granted under

9 Fed. R. Civ. P. 12(b)(6). E.g., Cleghorn v. Blue Shield of Cal., 408 F.3d 1222, 1225 (9th Cir.

10 2005) (affirming dismissal of state law claims preempted by ERISA).

11 III. PREEMPTION

12

A. Preemption generally.

13

The Supremacy Clause provides that the laws of the United States “shall be the supreme

14 Law of the Land[,] . . . anything in the Constitution or Laws of any State to the Contrary

15 notwithstanding.” U.S. Const. art. VI, cl. 2. Federal law can preempt state law in three ways: (1)

16 express preemption, (2) field preemption, or (3) obstacle/conflict preemption. Nat'l Fed'n of the

17 Blind v. United Airlines Inc., 813 F.3d 718, 724 (9th Cir. 2016). “Regardless of the type of

18 preemption involved—express, field or conflict—the purpose of Congress is the ultimate

19 touchstone of pre-emption analysis.” Id.

20

Analysis “starts with the basic assumption that Congress did not intend to displace state

21 law.” Maryland v. Louisiana, 451 U.S. 725, 746 (1981). This presumption applies in “all pre-

22 emption cases, and particularly in those in which Congress has legislated . . . in a field which the

23 States have traditionally occupied.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (internal

24

ORDER ON DEFENDANT THE GEO GROUP, INC.’S MOTION TO DISMISS CLASS ACTION COMPLAINT FOR DAMAGES - 5

Case 3:17-cv-05769-RJB Document 28 Filed 12/06/17 Page 6 of 15

1 quotations and citations omitted). “[L]abor standards fall[] within the traditional police power of

2 the State.” Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21 (1987). See also, RCW

3 49.46.005(a). The party seeking to set aside state law bears the burden to show preemption.

4 PLIVA, Inc. v. Mensing, 564 U.S. 604, 634 (2011).

5

B. Express preemption.

6

Express preemption applies where Congress explicitly states its intent to preempt state

7 law in the language of a statute. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992).

8 Where Congress has expressed an intent to preempt state law, the scope of the preemption is

9 determined by examining congressional intent, beginning with the legislative text, “which

10 necessarily contains the best evidence of Congress' preemptive intent.” CSX Transp., Inc. v.

11 Easterwood, 507 U.S. 658, 664 (1993). Courts also consider the “statutory framework,” as well

12 as the “structure and purpose of the statute as a whole.” Lohr, 518 U.S. at 486 (1996). “[W]hen

13 the text of a pre-emption clause is susceptible of more than one plausible reading, courts

14 ordinarily accept the reading that disfavors pre-emption. Altria Group, Inc. v. Good, 555 U.S. 70,

15 77 (2008) (internal quotations and citations omitted).

16

Defendant points to §1324a(h)(2) of the Immigration Reform and Control Act (IRCA) as

17 expressly preempting the State minimum wage provision. Dkt. 8 at 16; Dkt. 16 at 7-9. Through

18 IRCA, Congress created “a comprehensive scheme prohibiting the employment of illegal aliens

19 in the United States.” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002);

20 §1324a(a). The sole preemption provision under IRCA, §1342a(h)(2), prevents state and local

21 governments from “imposing civil or criminal sanctions (other than through licensing and similar

22 laws) upon those who employ . . . unauthorized aliens.” §1324a(h)(2).

23

24

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Case 3:17-cv-05769-RJB Document 28 Filed 12/06/17 Page 7 of 15

1

At issue is how broadly to define the term “sanction” under §1324a(h)(2). According to

2 Defendant, the term should be broadly construed to include lost wages, attorneys fees, and costs

3 for minimum wage violations. Dkt. 8 at 16; Dkt. 16 at 8, citing to RCW 49.46.20, RCW

4 49.46.090, and RCW 49.46.100. Plaintiff acknowledges that the term is undefined and argues

5 that the term refers to a “penalty or coercive measure,” whereas the Washington Minimum Wage

6 Act only provides a remedy of monetary damages for back pay and related costs. Dkt. 15 at 11,

7 12. Plaintiff also argues that because employing unauthorized aliens is the act that IRCA

8 “sanctions,” only state laws imposing sanctions for that conduct fall within IRCA’s express

9 preemption clause. Id.

10

Both parties agree that §1324a(h)(2) is an express preemption statute. There are no other

11 express preemption provisions under IRCA, so the key question is what Congress intended for

12 §1324a(h)(2) to preempt. Section 1324a(h)(2) prohibits states from imposing civil or criminal

13 sanctions “upon those who employ . . . unauthorized aliens[.]” Put differently, states cannot

14 penalize employers for employing unauthorized aliens. Even if, as Defendant argues, the

15 provisions of the Washington Minimum Wage Act are construed as “sanctions,” they would not

16 be imposed on account of employers hiring unauthorized aliens, but rather because of the failure

17 to pay the prevailing minimum wage. See RCW 49.46.020. Indeed, the Washington Minimum

18 Wage Act nowhere mentions immigration status, aliens, or any related term. See RCW 49.46 et

19 seq. Section 1324a(h)(2) does not preempt the State minimum wage provision.

20

In defense of its view that the term sanction should interpreted broadly to include lost

21 wages, attorneys fees, and costs, Defendant relies on Chamber of Commerce of U.S. v.

22 Edmondson, 594 F.3d 742, 765 (10th Cir. 2010). Dkt. 18 at FN 41. In Edmondson, the court

23 analyzed an Oklahoma statutory scheme (now-repealed) that “subject[ed] employers to cease and

24

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Case 3:17-cv-05769-RJB Document 28 Filed 12/06/17 Page 8 of 15

1 desist orders, reinstatement, back pay, costs, and attorneys’ fees” for hiring unauthorized aliens,

2 concluding that “[s]uch impositions . . . fall within the meaning of §1324a(h)(2) sanctions.” Id.

3 (emphasis added). Edmondson is inapposite. Even if Edmondson was binding precedent, analysis

4 of the term “sanction” was done in the context of a preliminary injunction, with focus on the

5 likelihood—and not the actual merits—of whether the Oklahoma law would be preempted. More

6 importantly, the mention of back pay was dicta and had no bearing on the holding of the case.

7 The court focused on the attempt by the Oklahoma legislature to create a work authorization

8 program that excluded unauthorized aliens from employment, which falls squarely within what

9 §1324a(h)(2) precludes states from doing.

10

Defendant has not shown that the State minimum wage provision is expressly preempted.

11

C. Field preemption.

12

“States are precluded from regulating conduct in a field that Congress, acting within its

13 proper authority, has determined must be regulated by its exclusive governance.” Arizona v.

14 U.S., 567 U.S. 387, 399 (2012). Congressional intent to displace state law can be inferred from

15 either “a federal interest . . . so dominant that the federal system will be assumed to preclude

16 enforcement of state laws,” or where “a framework of regulation [is] so pervasive . . . that

17 Congress left no room for the States to supplement it[.]” Id., citing to Rice v. Santa Fe Elevator

18 Corp., 331 U.S. 218, 230 (1947)(internal quotations omitted). “The question whether the

19 regulation of an entire field has been reserved by the Federal Government is, essentially, a

20 question of ascertaining the intent underlying the federal scheme.” Hillsborough Cty, Fla. v.

21 Automated Med. Labs., Inc., 471 U.S. 707, 714 (1985). “Pre-emption should not be inferred,

22 however, simply because the agency's regulations are comprehensive,” but rather, courts

23

24

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Case 3:17-cv-05769-RJB Document 28 Filed 12/06/17 Page 9 of 15

1 consider “evidence [of] a desire to occupy a field completely.” R.J. Reynolds Tobacco Co. v.

2 Durham Cnty., 479 U.S. 130, 149 (1986).

3

Defendant does not cogently articulate a dominant federal interest that would preclude

4 enforcement of State minimum wage laws, see Dkt. 8 at 17-19; Dkt. 16 at 9-11, so analysis

5 should focus on ascertaining congressional intent within a framework of regulation. Recent

6 Ninth Circuit precedent has emphasized “the importance of delineating the pertinent area of

7 regulation with specificity before proceeding with the field preemption inquiry.” Nat'l Fed'n of

8 the Blind, 813 F.3d at 734. Here, the pertinent area of regulation is detainee wages.

9

Defendant has assembled a hodgepodge of federal statutes and argues that Congress

10 intends to regulate the field of immigration detention generally, including detainee wages. See

11 Dkt. 16 at FN16, citing 8 U.S.C. §§1103, 1225, 1226, 1226a, 1231, 1324a, 1555(d). Surveying

12 the authority from Defendant, it cannot be said, with any degree of clarity, that Congress intends

13 to occupy the field of detainee wages. At best, Defendant has highlighted general sources of

14 authority for ICE agency action, but as discussed below, ICE has not created a regulatory scheme

15 preempting state law through its policies, including the Voluntary Work Program. These statutes

16 do not together show that Congress intends detainee wages to be part of IRCA’s “harmonious

17 whole.” Arizona, 567 U.S. at 401.

18

The most to be gleaned about congressional intent to occupy the field of detainee wages

19 can be found in 8 U.S.C. §1555(d). Section 1555(d) authorizes congressional appropriations for

20 “payment of allowances [to detainees] . . . for work performed,” but payment is limited to “such

21 rate as may be specified from time to time in the appropriation Act involved.” §1555(d)

22 (emphasis added). Under this section, Congress arguably speaks to detainee wages when

23 Congress appropriates payment of allowances to detainees for work performed, but although

24

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Case 3:17-cv-05769-RJB Document 28 Filed 12/06/17 Page 10 of 15

1 §1555(d) is still in effect, Congress has not specified any rate for detainee work since fiscal year

2 1979. At that time, Congress appropriated funds for “payment of allowances (at a rate not in

3 excess of $1 per day) . . . for work performed.” PL 95–431 (HR 12934), PL 95–431, Oct. 10,

4 1978, 92 Stat 1021 (emphasis added). At least since fiscal year 1979, Congress has abandoned

5 direct appropriations payment of allowances, despite its awareness of how to do so. See, e.g.,

6 Consolidated Appropriations Act, 2016, PL 114-113, December 18, 2015, 129 Stat 2242, 2497.

7 From the text of §1555(d), Defendant has not shown that Congress intended to preempt state law

8 regarding detainee wages.

9

Defendant has offered no satisfactory explanation for the congressional silence since

10 1979, other than to make general representations about congressional delegation of authority to

11 ICE3. Congress could delegate the authority to create a framework regulating detainee wages to

12 ICE, but Defendant has not made this showing. The question remains then, where the $1 per day

13 detainee wage rate comes from, if not from Congress, and the only answer is the Voluntary Work

14 Program. However, the Voluntary Work Program is an ICE policy with no preemptive force at

15 law.

16

If ICE intended for the Voluntary Work Program to preempt state law on the issue of

17 detainee wages, ICE would need to follow at least two sets of requirements, which it has failed to

18 do. First, as Plaintiff points out, ICE, like all federal agencies, is subject to Executive Order

19 13132, which requires agencies to follow specific rules when intending to preempt state law

20 through agency policy. Dkt. 15 at 16; Federalism, 64 FR 43255, E.O. 13132 (1999). Second, for

21 agency policy to have the force of law, agency rule-making processes must approach at least the

22 spirit of Administrative Procedure Act (APA) formalities. See United States v. Mead, 533 U.S.

23 24 3 But Defendant appears to forgo this argument in Reply, see Dkt. 16 at 10 ln. 21.

ORDER ON DEFENDANT THE GEO GROUP, INC.’S MOTION TO DISMISS CLASS ACTION COMPLAINT FOR DAMAGES - 10

Case 3:17-cv-05769-RJB Document 28 Filed 12/06/17 Page 11 of 15

1 218 (2001) and its progeny. Defendant has made no showing that ICE made efforts to observe

2 either set of requirements when creating the Voluntary Work Program. The policy’s transience is

3 highlighted by defense counsel’s oral acknowledgement that ICE could modify the Voluntary

4 Work Program at any time without notice. The Voluntary Work Program should not be viewed

5 as a regulatory scheme with the legal force to preempt state law.

6

In summary, Congress has not chosen to occupy the field of detainee wages. There is no

7 showing that Congress intended for its general appropriations after 1979 to delegate to ICE the

8 authority to preempt state law as to detainee wages. ICE policy on detainee wages, specifically,

9 the Voluntary Work Program, does not show a clear agency intent to preempt state law, where

10 there is no showing that ICE attempted to observe formalities that underlie its authority to do so.

11

Defendant has not shown that the State minimum wage provision is field preempted.

12

D. Conflict/obstacle preemption.

13

Conflict preemption exists “where it is impossible for a private party to comply with both

14 state and federal requirements,” and obstacle preemption exists “where state law stands as an

15 obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

16 English v. General Elec. Co., 496 U.S. 72, 79 (1990). Defendant argues that the State’s

17 minimum wage provision is preempted by both conflict and obstacle preemption.

18

On conflict preemption, Defendant argues that IRCA, which prohibits the hiring of

19 unauthorized aliens, and the State’s minimum wage provision, which would require GEO to treat

20 detainee-workers as “employees” deserving the State minimum wage, are in conflict, making it

21 impossible for GEO to comply with both. Dkt. 8 at 8; Dkt. 16 at 11. “Hiring virtually any

22 detainee” would violate IRCA, Defendant opines. Id. at 12. Plaintiff contests Defendant’s

23 representation that GEO could not abide by both IRCA and the State’s minimum wage

24

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Case 3:17-cv-05769-RJB Document 28 Filed 12/06/17 Page 12 of 15

1 provisions and represents that “many” detainees could work lawfully within IRCA’s constraints.

2 Dkt. 15 at 17-19.

3

Defendant’s conflict preemption argument is premature, because it relies on factual

4 determinations about the status of detainees. Defendant has challenged the pleadings under Fed.

5 R. Civ. P. 12(b)(6), which means that the Court must resolve the motion based on allegations in

6 the Complaint. See Dkt. 1.

7

Defendant’s obstacle preemption argument is wandering and opaque, see Dkt. 8 at 20-22;

8 Dkt. 16 at 11-13, but Defendant appears to point to several federal objectives and purposes that

9 may be obstructed: increased costs to ICE, and, ultimately taxpayers; a “balkanized patchwork”

10 of state laws; and the undermining of ICE’s authority to care for detainees. Id.

11

Defendant’s obstacle preemption argument is also premature, because addressing whether

12 the federal objectives and purposes will be obstructed would require resolution of factual

13 determinations far beyond the pleadings.

14

In sum, the conflict/obstacle preemption issues may become ripe at summary judgment or

15 at trial, but at present factual issues abound that preclude a decision based on the pleadings, and

16 before discovery. Defendant has not shown that the State minimum wage provision is conflict or

17 obstacle preempted.

18

Admittedly, at first blush the issue of preemption would seem to favor Defendant, given

19 the long history of federal legislation and agency action in the area of immigration detention

20 generally. After peeling back the rhetoric and examining the actual statutes and regulations, on

21 the issue of detainee wages, an area of traditional state prerogative, the Court cannot find

22 evidence of congressional intent—either express or implied—sufficient to overcome the

23

24

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Case 3:17-cv-05769-RJB Document 28 Filed 12/06/17 Page 13 of 15

1 presumption against preemption. Defendant’s motion to dismiss based on preemption should be

2 denied.

3 IV. FAILURE TO STATE A CLAIM

4

Defendant contends that the Complaint fails to state a claim because detainees are not

5 “employees” under Washington law. The Washington Minimum Wage Act defines “employee”

6 generally as “any individual employed by an employer,” subject to an enumerated list of

7 exceptions. RCW 49.46.010(3). Defendant argues that detainees fall under an exception,

8 subsection (3)(k), which excepts from the general definition, “Any resident, inmate, or patient of

9 a state, county, or municipal correctional, detention, treatment or rehabilitative institution[.]”

10 RCW 49.46.010(3)(k).

11

Beginning with the statute itself, it is plain that the definition excepts residents of “state .

12 . . detention” facilities, not federal facilities. See RCW 49.46.010(3)(k). The Northwest

13 Detention Center is a federal detention facility and thus does not fall under the exception. This

14 conclusion is reinforced by Washington law narrowly construing exceptions in favor of the

15 employee. See Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 870 (2012).

16

Anticipating this result, Defendant urges an expansive interpretation of the exception to

17 federal detainees. (This is an ironic request, because elsewhere Defendant argues that the State

18 deliberately omitted federal detainees from the statutory exception because it would be

19 “outlandish” for the State to include them.) Defendant urges this Court to follow Menocal v.

20 GEO Grp., Inc., 113 F. Supp. 3d 1125, 1129 (D. Colo. 2015) and Whyte v. Suffolk Cty. Sheriff’s

21 Dep’t, 91 Mass.App.Ct. 1124, 2017 WL 2274618 (Mass. App. Ct. May 24, 2017). Menocal and

22 Whyte considered the application of state minimum wage laws of Colorado and Massachusetts,

23 respectively, to federal detainees. Both cases rely on Alvarado Guevara v. Immigration &

24

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Case 3:17-cv-05769-RJB Document 28 Filed 12/06/17 Page 14 of 15

1 Naturalization Serv., 902 F.2d 394 (5th Cir. 1990), which considered whether the Fair Labor

2 Standards Act (FLSA) applies to federal detainees. But see Hale v State of Ariz., 967 F.2d 1356,

3 1362-63 (9th Cir. 1992), on reh’g, 993 F.2d 1387 (9th Cir. 1993) (leaving open the possibility that

4 the FLSA could apply to incarcerated inmates).

5

Neither Menocal, Whyte, nor Alvarado is binding precedent, and in this Court’s view,

6 extending the logic of Alvarado to interpret this State’s statutory exception to include federal

7 detainees moves beyond interpretation to legislation. In the absence of binding authority, the

8 undersigned should respectfully decline the invitation to add to the statute.

9

In conclusion, Defendant’s motion to dismiss for failure to state a claim boils down to the

10 argument that the legislature intended to do something it did not do, or that it should have done

11 something that it did not do. This Court should not re-write legislation. At least based on the

12 pleadings, it is plausible that the Plaintiff, arguably, comes within the State definition of

13 “employee,” and is not subject to any existing statutory exception.

14 V. CONCLUSION

15

Defendant has not overcome the presumption against preemption by showing

16 congressional intent to displace state law as to detainee wages. The Complaint states a claim

17 upon which relief can be granted, because it is plausible that Plaintiff is an “employee” under

18 Washington law.

19

THEREFORE, Defendant The GEO Group, Inc.’s Motion to Dismiss Class Action

20 Complaint for Damages (Dkt. 8) is HEREBY DENIED.

21

IT IS SO ORDERED.

22

The Clerk is directed to send uncertified copies of this Order to all counsel of record and

23 to any party appearing pro se at said party’s last known address.

24

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1

Dated this 6th day of December, 2017.

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ROBERT J. BRYAN United States District Judge

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 Case 3:17-cv-05769-RJB Document 40 Filed 02/28/18 Page 1 of 16

1

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT TACOMA

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CHAO CHEN, individually and on behalf

11

of those similarly situated,

12 v.
13

Plaintiff,

THE GEO GROUP, INC., a Florida

14

corporation,

15

Defendant.

16

CASE NO. 3:17-5769-RJB
ORDER ON PLAINTIFF’S MOTION TO DISMISS OR STRIKE DEFENDANT’S COUNTERCLAIMS AND AFFIRMATIVE DEFENSES

17 THIS MATTER comes before the Court upon Plaintiff Chao Chen’s Motion to Dismiss
18 or Strike Defendant’s Counterclaims and Affirmative Defenses. Dkt. 37. The Court has
19 considered the motion, Defendant The Geo Group, Inc.’s Response, Plaintiff’s Reply,
20 Defendant’s Answer, and the remainder of the file herein. Dkts. 33, 37, 38, 39.
21 This case arises out of the allegation that Defendant failed to compensate Plaintiff and a
22 proposed class of immigration detainees commensurate with the Washington Minimum Wage
23 Act. See Dkt. 1. Defendant’s Answer alleges two counterclaims, both of which Plaintiff seeks to
24

ORDER ON PLAINTIFF’S MOTION TO DISMISS OR STRIKE DEFENDANT’S COUNTERCLAIMS AND AFFIRMATIVE DEFENSES - 1

Case 3:17-cv-05769-RJB Document 40 Filed 02/28/18 Page 2 of 16

1 strike under Fed. R. Civ. P. 12(f) or dismiss under Fed. R. Civ. P. 12(b)(6). See Dkt. 33 at ¶¶8.1-

2 8.14, 11.1-12.12. Defendant’s Answer raises fourteen affirmative defenses, all but four of which

3 Plaintiff seeks to strike. See id. at 33 at ¶¶8.1-8.14.

4

Facts alleged in the Answer and procedural history are introduced below only where

5 relevant to discussion of each counterclaim and affirmative defense.

6

I. COUNTERCLAIMS (Dkt. 33 at ¶¶11.1-12.12)

7 A. Standard for relief.

8

Plaintiff seeks dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Fed. R.

9 Civ. P. 12(b) motions to dismiss may be based on either the lack of a cognizable legal theory or

10 the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica

11 Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted

12 and the claim is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295 (9th Cir.

13 1983). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

14 factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief

15 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

16 of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 (2007) (internal

17 citations omitted). “Factual allegations must be enough to raise a right to relief above the

18 speculative level, on the assumption that all the allegations in the complaint are true (even if

19 doubtful in fact).” Id. at 555. The complaint (or counterclaim) must allege “enough facts to state

20 a claim to relief that is plausible on its face.” Id. at 547.

21

Plaintiff also moves to strike under Fed. R. Civ. P. 12(f). Rule 12(f) is designed to help

22 “avoid the expenditure of time and money that must arise from litigating spurious issues by

23 dispensing with those issues prior to trial.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970,

24

ORDER ON PLAINTIFF’S MOTION TO DISMISS OR STRIKE DEFENDANT’S COUNTERCLAIMS AND AFFIRMATIVE DEFENSES - 2

Case 3:17-cv-05769-RJB Document 40 Filed 02/28/18 Page 3 of 16

1 973 (9th Cir. 2010) (citation omitted). Under Rule 12(f), courts may “strike from a pleading an

2 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.

3 Civ. P. 12(f). Motions to strike are disfavored, because they “may be used as delaying tactics and

4 because of the strong policy favoring resolution on the merits.” Barnes v. AT&T Pension Ben.

5 Plan-Nonbargained Program, 718 F.Supp.2d 1167 (N.D.Cal.2010), citing to Stanbury Law Firm

6 v. I.R.S., 221 F.3d 1059, 1063 (8th Cir.2000).

7 B. Unjust enrichment (Dkt. 33 at ¶¶11.1-11.14)

8

Defendant’s counterclaim for Unjust Enrichment alleges that, as required by ICE, GEO

9 operates the Voluntary Work Program, which is not intended to, and does not, create an

10 employer/employee relationship between GEO and detainees, whose participation is voluntary.

11 Dkt. 33 at ¶11.1. The program is intended to promote institutional maintenance and reduce

12 detainee idleness, it is alleged, with no traditional, standard, performance metrics used to

13 measure job performance. Id. at ¶11.3. The counterclaim further alleges that if Plaintiff prevails

14 in a Washington Minimum Age Act claim for lost wages, Defendant is entitled to recover “its

15 costs and expenses associated with operating the Voluntary Work Program and caring for

16 plaintiff and any putative class member.” Id. at ¶11.14.

17

The Answer separately alleges an affirmative defense for offset of any costs incurred in

18 caring for Plaintiff and costs associated with operating the Voluntary Work Program. Dkt. 33 at

19 ¶8.14. Plaintiff does not seek to strike or dismiss the offset affirmative defense. Dkt. 39 at 5.

20

Plaintiff argues that Defendant is not entitled to any restitution from Plaintiff for housing

21 and other expenses, because Defendant has already been fully paid by ICE for those services.

22 Dkt. 39 at 3. Although Defendant may have conferred a benefit on Plaintiff, e.g., by providing

23 food and lodging, Plaintiff was involuntarily detained and had no input over his conditions. Dkt.

24

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Case 3:17-cv-05769-RJB Document 40 Filed 02/28/18 Page 4 of 16

1 37 at 6. Under circumstances where ICE paid Defendant for Plaintiff’s and other detainees’

2 living expenses, Plaintiff opines, it is not inequitable for Plaintiff to retain the value of his basic

3 necessities. Id. Finally, Plaintiff contends, Defendant cannot recover losses incurred because of

4 its illegal failure to observe State wage laws. Id. at 7, 8.

5

Defendant responds by again addressing the merits of whether Plaintiff is an “employee”

6 under the Washington Minimum Wage Act. Dkt. 38 at 26, 27. Defendant argues further that

7 “[c]ourts” have allowed “contingent unjust enrichment counterclaims in minimum wage

8 actions.” Id. Defendant cites to two nonbinding opinions, Reyes v. LaFarga, 2013 WL 12097452

9 (D.Ariz. 2013) and Mann v. Fredricktown Assoc. Limited Partnership, 2015 WL 4878661

10 (D.Md. 2015).

11

“Unjust enrichment of a person occurs when he has and retains money or benefits which

12 in justice and equity belong to another.” Bailie Commc'ns, Ltd. v. Trend Bus. Sys., Inc., 61 Wn.

13 App. 151, 159 (1991). A claim for unjust enrichment has three elements: (1) the defendant [or

14 counter-defendant] receives a benefit, (2) the received benefit is at the plaintiff’s [or counter-

15 plaintiff’s] expense, and (3) the circumstances make it unjust for the defendant [or counter-

16 defendant] to retain the benefit without payment. Young v. Young, 164 Wn. 2d 477, 484-85

17 (2008).

18

The first element is satisfied by the allegation that Defendant conferred on Plaintiff the

19 benefit of food, lodging, and other necessities and amenities. The second element is satisfied

20 under the theory that if Plaintiff receives an award for lost wages from Defendant, Plaintiff has

21 received both the benefit conferred and the award for lost wages, both at Defendant’s expense.

22 The third element is satisfied under the theory that such compensation would unfairly increase

23 Defendant’s burden to comply with ICE contract obligations.

24

ORDER ON PLAINTIFF’S MOTION TO DISMISS OR STRIKE DEFENDANT’S COUNTERCLAIMS AND AFFIRMATIVE DEFENSES - 4

Case 3:17-cv-05769-RJB Document 40 Filed 02/28/18 Page 5 of 16

1

Plaintiff’s argument, that Defendant cannot recover restitution from Plaintiff because it

2 has already been fully paid by ICE, is relevant to the second and third elements, but not on a

3 motion to dismiss for failure to state a claim. The Court does not here reach the merits of

4 whether Defendant should be precluded from recovery because of its own illegal conduct. That is

5 an equitable argument better reached at trial.

6

As a practical matter, the counterclaim overlaps substantially with Affirmative Defense

7 8.14 (offset). The counterclaim for Unjust Enrichment may be flawed, but the issue raised by

8 Plaintiff is whether Defendant has stated a claim upon which relief can be granted. Defendant

9 has done so.

10

Plaintiff’s motion to dismiss the counterclaim for Unjust Enrichment for failure to state a

11 claim should be denied.

12 C. Declaratory Relief under 28 U.S.C. §2201 (Dkt. 33 at ¶¶12.1-12.12)

13

The final paragraph of the counterclaim for Declaratory Relief states:

14

The Court should declare that there is no employment relationship between GEO and

detainees who participate in the Voluntary Work Program. Further, plaintiff is not an

15

“employee,” and GEO is not an “employer” with respect to Voluntary Work Program

participation, and therefore the FLSA’s and MWA’s minimum wage protections do not

16

apply to plaintiff or any putative class member.

17 Dkt. 33 at ¶12.12. Immediately following that paragraph, with no separate heading, the Answer

18 reads:

19

GEO prays for the following affirmative relief:

20

1. For an order enjoining plaintiffs from claiming the MWA applies to them;

21

2. For an order declaring the MWA inapplicable to ICE detainees at the NWDC;

22

3. For an order declaring the FLSA inapplicable to ICE detainees at the NWDC;

23

24

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Case 3:17-cv-05769-RJB Document 40 Filed 02/28/18 Page 6 of 16

1

4. For a declaration that GEO has no employment relationship with any detainees who

2

participate in the Voluntary Work Program, including no relationship that requires

3

payment of a minimum wage[.]

4

. . .

5 Dkt. 33 at 13.

6

These counterclaims for declaratory and injunctive relief go to the heart of Defendant’s

7 view of Plaintiff’s claims. The determination of what relief, if any, should be granted to either

8 party is a long way off and should not be decided now.

9

The Court notes that both the prayer for affirmative relief and ¶12.12 seek declaratory

10 relief for an order on the applicability of the FLSA. Plaintiff has explicitly brought this case only

11 under the Washington Minimum Wage Act, not its federal counterpart. Therefore, requests for

12 declaratory relief regarding the FLSA should be stricken. Whether the FLSA has some

13 evidentiary value here remains an open question.

14

Plaintiff’s motion to strike the counterclaims for declaratory and injunctive relief should

15 be denied without prejudice, except relief requested under the FLSA, which should be stricken.

16

Defendant also seeks leave to amend its counterclaim. Dkt. 38 at 10. Defendant may

17 move for leave to amend pursuant to Fed. R. Civ. P. 15 if it chooses.

18

II. AFFIRMATIVE DEFENSES (Dkt. 33 at ¶¶8.1-8.14)

19 A. Striking certain affirmative defenses under Fed. R. Civ. P. 12(f).

20

Federal Rule of Civil Procedure 12(f) reads as follows: “The court may strike from a

21 pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous

22 matter.” Plaintiff moves under Rule 12(f) to strike the following affirmative defenses: 8.1

23 (failure to state a claim), 8.2 (statute of limitations), 8.4 (laches), 8.5 (waiver), 8.8 (ripeness), 8.9

24

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1 (justiciability), 8.10 (unclean hands), 8.11 (exhaustion of administrative remedies), 8.12

2 (impropriety of class certification), 8.13 (attorney’s fees/costs). Dkt. 37.

3

8.1 Plaintiff has failed to state a claim for which relief may be granted.

4

Plaintiff argues that failure to state a claim is not an affirmative defense. Dkt. 37 at 12,

5 citing to Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). Plaintiff further

6 contends that while the Court can consider this defense, it has already done so when addressing

7 Defendant’s Motion to Dismiss (Dkt. 28), and the defense should also be stricken “for the

8 purpose of clarity[.]” Id.

9

Defendant acknowledges that the Court denied its Motion to Dismiss, but argues that the

10 denial “does not cure the fundamental defects in Mr. Chen’s claim, nor does it prevent GEO

11 from seeking appropriate relief . . . based on those defects [where] the Court identified dismissal

12 arguments as premature[.]” Dkt. 38 at 10. The remainder of Defendant’s argument relitigates the

13 merits of its prior motion. See id. at 10-14.

14

Whether failure to state a claim can be raised as an affirmative defense need not be

15 resolved, but see Zivkovic, 302 F.3d at 1088, because in this case, the affirmative defense of

16 failure to state a claim is redundant. The Court squarely reached the merits of whether the

17 Complaint fails to state a claim in the Order on The Geo Group, Inc.’s Motion to Dismiss Class

18 Action Complaint for Damages. Dkt. 28 at 13-15. See Dkt. 8 at 23-29. The “premature”

19 comment referred to a decision about whether dismissal was warranted on preemption grounds,

20 not for failure to state a claim. Dkt. 28 at 12 (“conflict preemption argument is premature”).

21

Plaintiff’s motion to strike Affirmative Defense 8.1 should be granted and the defense

22 stricken as redundant.

23

8.2 Plaintiff seeks relief barred by the statute of limitations.

24

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1

The Complaint alleges that Plaintiff was detained at the Northwest Detention Center from

2 October 2014 until February 2016, a timeframe that falls within three years of the filing of the

3 Complaint, on September 26, 2017. Dkt. ¶1 at 3.1. The Complaint seeks damages for lost wages

4 for work performed by Mr. Chen, as well as “all civil immigration detainees who . . . have

5 performed work for GEO at NWDC at any time during the three years prior to the filing of this

6 complaint and thereafter.” Id. at 5.1. Both parties assume a three-year statute of limitations

7 applies.

8

Plaintiff argues that Defendant has offered no facts indicating it could prevail on this

9 defense, where Defendant’s Answer acknowledges the timeframe of Plaintiff’s detention and the

10 case was filed less than three years later. Dkt. 37 at 12. Further, Plaintiff contends, the Complaint

11 seeks to certify only a class of detainees “who perform or have performed . . . at any time during

12 the three years prior to the filing of this complaint.” Id. See Dkt. 1 at ¶1.1.

13

Defendant argues that the affirmative defense of statute of limitations is proper because it

14 sufficiently puts Plaintiff on notice, and striking the affirmative defense now prematurely results

15 in a decision on its merits. Dkt. 38 at 15. Per Defendant, although the Complaint limits the

16 proposed class to detainees who worked within the three years prior to the case, the Complaint

17 does not limit the scope of recovery of the proposed class from recovery outside the statutory

18 period. Id. This would allow recovery for, for example, unpaid wages from 2013 (outside the

19 statutory period) for a plaintiff-detainee who worked in 2017 (within the statutory period). See

20 id.

21

Plaintiff counters this argument by explaining his interpretation of the Complaint: the

22 proposed class is limited “to the work performed within the statutory period.” Dkt. 39 at 8, citing

23 to Dkt. 1 at ¶5.1. Given Plaintiff’s interpretation of his own claim, it is unlikely that the statute of

24

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Case 3:17-cv-05769-RJB Document 40 Filed 02/28/18 Page 9 of 16

1 limitations will be implicated. Nevertheless, naming the defense now is not redundant or

2 insufficient, and protects the defendant, should any claim outside the limitations period appear as

3 the case develops.

4

Plaintiff’s motion to strike Affirmative Defense 8.2 should be denied without prejudice.

5

8.4 Plaintiff has unreasonably delayed in requesting relief, and his lack of diligence

and activity in stating or making a legal claim—to the prejudice of GEO—means his

6

claim is barred by the affirmative defense of laches.

Plaintiff argues that the affirmative defense of laches should be stricken because

7

Defendant has pleaded no set of facts that would give Plaintiff fair notice of an intended basis for

8

the defense suggesting an unreasonable, prejudicial delay. Dkt. 37 at 12. Further, Plaintiff

9

argues, the doctrine of laches cannot be applied to bar a claim that is timely-filed under the

10

relevant statutory period. Dkt. 39 at 9, citing SCA Hygiene Prod. Aktiebolag v. First Quality

11

Baby Prod. LLC, 137 S.Ct. 954, 960 (2017).

12

Defendant argues that, upon information and belief, Plaintiff knew or should have known

13

the basis for the minimum wage violations at the time he was detained, during 2014-2016, yet he

14

failed to file this case then, which has caused Defendant prejudice. Dkt. 38 at 16. Plaintiff also,

15

again, argues the merits of whether the Washington Minimum Age Act applies. Id. at 17.

16

In SCA Hygiene, 137 S.Ct. at 960, the Supreme Court of the United States rejected the

17

rationale relied on by Defendant, invoking the maxim that “[l]aches is a gap-filling doctrine, and

18

where there is a statute of limitations, there is no gap to fill.” Id. That Court rejected the

19

application of laches to a case filed within the Patent Act’s statute of limitations, reasoning that

20

when Congress has spoken to give a patent owner a certain time period to file a claim, allowing

21

courts to shorten that time on equitable grounds “would give judges a ‘legislation-overriding’

22

role that is beyond the Judiciary’s power.” Id. at 960. The Ninth Circuit has recently extended

23

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Case 3:17-cv-05769-RJB Document 40 Filed 02/28/18 Page 10 of 16

1 the logic of SCA Hygiene to habeas actions, subject to a different statute of limitations. Grant v.

2 Swarthout, 862 F.3d 914, 919-20 (9th Cir. 2017).

3

This Court sees no reason to depart from SCA Hygiene. Its logic applies with equal force

4 to the risk of shortening the three year statutory period in this case. The Complaint seeks relief

5 for lost wages only within the statutory period. See Dkt. 1 at ¶1.1. Addressing the merits of a

6 laches affirmative defense could shorten the statutory period for the case to be filed, an outcome

7 that would place the Court in the role of legislator. Laches is an insufficient defense.

8

Plaintiff’s motion to strike Affirmative Defense 8.4 should be granted and the defense

9 stricken.

10

8.5 Plaintiff waived his claims when he (and/or putative class members) freely elected

to participate in the Voluntary Work Program.

11

Plaintiff argues that Defendant is statutorily precluded from bringing a waiver defense

12

under Washington law, which prohibits any agreement between employers and employees to pay

13

employees below minimum wage. Dkt. 37 at 13, citing RCW 49.60.090(1). It follows, Plaintiff

14

continues, that Plaintiff could not have waived his minimum wage protections even if he wanted

15

to. Id.

16

Defendant argues that, by virtue of participating in the Voluntary Work Program,

17

Plaintiff was not an “employee” for Washington State Minimum Wage Act purposes and not

18

subject to, and thus waived, its protections. Dkt. 38 at 17, 18. Defendant maintains that Plaintiff

19

participated in a voluntary program and received an allowance or stipend, electing not to

20

complete the “requisite paperwork” to be treated like an ICE employee. Id.

21

The parties’ arguments boil down to the issue of whether the Washington Minimum

22

Wage Act applies. Defendant’s argument repeats its attack on the issue of whether Plaintiff could

23

be an “employee.” Dkt. 28 at 13, 14. RCW 49.60.090(1) provides: “Any agreement between

24

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Case 3:17-cv-05769-RJB Document 40 Filed 02/28/18 Page 11 of 16

1 such employee and the employer allowing the employee to receive less than what is due under

2 this chapter shall be no defense to such action.” Under the assumption that Plaintiff is an

3 employee, Washington law precludes Plaintiff from waiving his right to the prevailing minimum

4 wage. Alternatively, under the assumption that Plaintiff was not an employee, see Dkt. 28 at 14,

5 ln. 11, 12, Plaintiff would not be entitled to lost wages under the Washington Minimum Wage

6 Act, and waiver would be a nonissue. Under either scenario, the merits of waiver by Plaintiff

7 would not be reached. The affirmative defense of waiver is therefore an insufficient defense.

8

Plaintiff’s motion to strike Affirmative Defense 8.5 should be granted and the defense

9 stricken.

10

8.8 Plaintiff’s claim is not ripe AND 8.9 Plaintiff’s claim is not justiciable.

11

Defendant’s standing argument predominately overlaps with its exhaustion argument. See

12 8.11 below.

13

Defendant also argues that Plaintiff lacks standing because he was not a lawful

14 permanent resident when detained and was ineligible to work and to bring a lost wages claim.

15 Dkt. 38 at 20.

16

Plaintiff argues that he was, in fact, entitled to minimum wage protections regardless of

17 whether work was performed with employment authorization, because the Washington

18 Minimum Wage Act applies to any “employee” as defined by state law. Dkt. 39 at 11. Plaintiff

19 also argues that, as a threshold matter, ripeness is a subject-matter jurisdictional challenge under

20 Fed. R. Civ. P. 12(b)(1), not an affirmative defense. Id.

21

The Court’s subject-matter jurisdiction cannot be waived. Fed. R. Civ. P. 12(h)(3). As a

22 practical matter, whether the ripeness and justiciability affirmative defenses are stricken is

23

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Case 3:17-cv-05769-RJB Document 40 Filed 02/28/18 Page 12 of 16

1 inconsequential to the merits of whether the Court has jurisdiction. The defenses are not

2 insufficient or redundant, and need not be stricken.

3

Plaintiff’s motion to strike Affirmative Defenses 8.8 and 8.9 should be denied without

4 prejudice.

5

8.10 Plaintiff has unclean hands.

6

Defendant’s theory is that Plaintiff has unclean hands, by filing this case under suspect

7 circumstances, where he may have been motivated by political reasons, coercion, or undue

8 influences. Dkt. 38 at 20. Defendant points to Plaintiff’s apparent political influence and the

9 coordination of this lawsuit with another filed by the Washington State Attorney General. Id.

10

Plaintiff contends that Defendant has done nothing more than cast baseless, hyperbolic

11 aspersions against Plaintiff, none of which are found in the Answer itself, so the Affirmative

12 Defense, as alleged, is insufficient. Dkt. 39 at 12. Further, according to Plaintiff, the equitable

13 defense of unclean hands does not apply to the Washington Minimum Wage Act. Dkt. 39 at 12.

14

Plaintiff overstates what an affirmative defense must contain. Unlike the complaint,

15 which must contain a “short and plain statement of the claim showing that the pleader is entitled

16 to relief,” Fed. R. Civ. P. 12(a)(2), an Answer need only give notice of the defense “in short and

17 plain terms.” Fed. R. Civ. P. 12(b)(1)(A). The rule gives examples of properly-termed

18 affirmative defenses, “including: accord and satisfaction; arbitration and award; assumption of

19 risk; contributory negligence; duress; estoppel[.]” Fed. R. Civ. P. 12(c)(1). As alleged by

20 Defendant in this case, the Affirmative Defense is sufficient for Fed. R. Civ. P. 12(b)(1)(A)

21 purposes.

22

Plaintiff’s second argument, that the unclean hands doctrine does not apply to the

23 Washington Minimum Wage Act, relies only on persuasive authority. Plaintiff cites to Bailon v.

24

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Case 3:17-cv-05769-RJB Document 40 Filed 02/28/18 Page 13 of 16

1 Seok AM No. 1 Corp., 2009 WL 4884340, at *5 (W.D. Wash. 2009), a case from this district.

2 Bailon is of minimal assistance, because it rejected the affirmative defense of unclean hands

3 summarily and as to a “FLSA/MWA” claim. See id. at *2 and *5. Defendant has articulated a

4 cognizable theory that provides Plaintiff with notice, and the defense is neither insufficient nor

5 redundant.

6

Plaintiff’s motion to strike Affirmative Defense 8.10 should be denied without prejudice.

7

8.11 Exhaustion of administrative remedies.

8

According to Defendant, Washington law recognizes the “principle in [the Washington

9 Minimum Wage Act]” that administrative remedies must be pursued prior to court intervention.

10 Dkt. 38 at 18, citing to RCW 49.46.040(2). Defendant also argues that Plaintiff should have, but

11 failed to, exhaust federal administrative remedies, on two grounds: so that he could legally work

12 for ICE with an approved I-765 work permit, and because he was a detainee and thus subject to

13 administrative grievance procedures of the Prison Litigation Reform Act (PLRA). Id.

14

Defendant has not made any showing that the Washington Minimum Wage Act requires

15 exhaustion of administrative remedies, where Defendant cites only to RCW 49.46.040(2). The

16 subsection states: “With the consent and cooperation of federal agencies charged with the

17 administration of federal labor laws, the Washington State Department of Labor and Industries

18 director may . . . utilize the services of federal agencies and their employees[.]” RCW

19 49.46.040(2) (emphasis added). The statute simply authorizes Washington L&I to partner with

20 federal counterparts and does not speak to a required administrative remedy.

21

Regarding federal administrative remedies, Defendant’s arguments fare no better. First,

22 the issue of whether Plaintiff exhausted administrative remedies for an I-765 work permit is not

23 determinative of whether Plaintiff was an “employee” for Washington Minimum Wage Act

24

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Case 3:17-cv-05769-RJB Document 40 Filed 02/28/18 Page 14 of 16

1 purposes. Under Washington law, courts decide whether a person is an “employee” by applying

2 the economic-dependence test. Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851,

3 871 (2012). To this Court’s knowledge—and Plaintiff has not provided authority to the

4 contrary—applying this test does not necessarily implicate consideration of federal

5 administrative remedies. Second, as Plaintiff correctly notes, “an alien detained by [ICE,

6 formerly known as] INS[,] pending deportation is not a “prisoner” within the meaning of the

7 PLRA,” Agyeman v. I.N.S., 296 F.3d 871, 886 (9th Cir. 2002).

8

There is no showing as a matter of law that, under either state or federal law, Plaintiff

9 needed to exhaust administrative remedies precedent to bringing a Washington Minimum Wage

10 Act claim. The defense is insufficient. Plaintiff’s motion to strike Affirmative Defense 8.11

11 should be granted and the defense stricken.

12

8.12. Class certification is improper because plaintiff [sic] cannot prove that

certification is warranted AND 8.13. Plaintiff is not entitled to attorney’s fees or costs.

13

Plaintiff argues that Affirmative Defenses 8.12 and 8.13 are not, in fact, affirmative

14

defenses. Dkt. 37 at 15. Plaintiff maintains that striking them will minimize confusion and

15

streamline the pleadings. Id.

16

Defendant has not opposed Plaintiff’s motion to strike on these grounds and appears to

17

have abandoned Affirmative Defenses 8.12 and 8.13. See Dkt. 38.

18

The Court agrees with Plaintiff. Notwithstanding Defendant’s right to oppose motions for

19

class certification, and for attorney’s fees or costs, these defenses are not truly defenses and are

20

therefore insufficient. Plaintiff’s motion to strike Affirmative Defenses 8.12 and 8.13 should be

21

granted and the defenses stricken.

22

B. Other affirmative defenses not the subject of Plaintiff’s motion.

23

24

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Case 3:17-cv-05769-RJB Document 40 Filed 02/28/18 Page 15 of 16

1

Plaintiff did not move to strike Affirmative Defenses 8.3 (preemption), 8.6 (joinder of

2 DHS/ICE), 8.7 (no legal right to work), and 8.14 (offset). This Order makes no finding about

3 them.

4

* * *

5

THEREFORE Plaintiff’s Motion to Dismiss or Strike Defendant’s Counterclaims and

6 Affirmative Defenses (Dkt. 37) is GRANTED IN PART and DENIED IN PART as follows:

7

Counterclaims:

8

(1) Unjust Enrichment. The motion to dismiss for failure to state a claim is

9

DENIED.

10

(2) Counterclaims for declaratory and injunctive relief. The motion to strike is

11

DENIED WITHOUT PREJUDICE, except relief requested under the FLSA,

12

which is stricken.

13

Affirmative Defenses:

14

(1) The motion is GRANTED as to Affirmative Defenses 8.1 (failure to state a

15

claim), 8.4 (laches), 8.5 (waiver), 8.11 (exhaustion of administrative remedies),

16

8.12 (impropriety of class certification), 8.13 (attorney’s fees/costs), which are

17

HEREBY STRICKEN.

18

(2) The motion is DENIED WITHOUT PREJUDICE as to Affirmative Defenses

19

8.2 (statute of limitations), 8.8 (ripeness), 8.9 (justiciability), 8.10 (unclean

20

hands).

21

(3) The Court makes no finding as to Affirmative Defenses 8.3 (preemption), 8.6

22

(joinder of DHS/ICE), 8.7 (no legal right to work), and 8.14 (offset).

23

IT IS SO ORDERED.

24

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Case 3:17-cv-05769-RJB Document 40 Filed 02/28/18 Page 16 of 16

1

The Clerk is directed to send uncertified copies of this Order to all counsel of record and

2 to any party appearing pro se at said party’s last known address.

3

Dated this 28th day of February, 2018.

4 5

A

6

ROBERT J. BRYAN United States District Judge

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 Case 3:17-cv-05769-RJB Document 67 Filed 04/26/18 Page 1 of 10

1

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3

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5

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8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT TACOMA

10

11

CHAO CHEN,

12

v.

Plaintiff,

13

THE GEO GROUP INC.,

14

Defendant.

15

CASE NO. 3:17-cv-05769-RJB
ORDER ON DEFENDANT THE GEO GROUP INC.’S MOTION FOR ORDER OF DISMISSAL BASED ON PLAINTIFF’S FAILURE TO JOIN REQUIRED GOVERNMENT PARTIES

16

17

THIS MATTER comes before the Court on Defendant The GEO Group Inc.’s Motion for

18 Order of Dismissal Based on Plaintiff’s Failure to Join Required Government Parties. Dkt. 51.

19 The Court has reviewed the motion, all documents filed in support and opposition, and the

20 remainder of the file herein, and considered oral argument on April 24, 2018.

21

Defendant seeks dismissal for Plaintiff Chao Chen’s failure to join the Department of

22 Homeland Security and an agency thereof, Immigration and Customs Enforcement (collectively,

23 “ICE”). See Dkt. 51 at FN1. As discussed below, dismissal should be denied because ICE is

24

ORDER ON DEFENDANT THE GEO GROUP INC.’S MOTION FOR ORDER OF DISMISSAL BASED ON PLAINTIFF’S FAILURE TO JOIN REQUIRED GOVERNMENT PARTIES - 1

Case 3:17-cv-05769-RJB Document 67 Filed 04/26/18 Page 2 of 10

1 neither a necessary nor an indispensable party. The case can proceed in equity and good

2 conscience.

3

I. BACKGROUND

4

Defendant moves to dismiss for failure to join under Fed. R. Civ. P. 12(b)(7) following

5 the initial pleadings, but before the completion of discovery. Failure to join may be raised at any

6 stage. McCowen v. Jamieson, 724 F.2d 1421, 1424 (9th Cir. 1984); CP Nat. Corp. v. Bonneville

7 Power Admin., 928 F.2d 905, 911-12 (9th Cir. 1991). See Fed. R. Civ. P. 12(h)(2). Facts recited

8 are derived either from the Complaint or from a contract incorporated by the Complaint and

9 relied upon by the parties. Dkts. 1, 19, 45-3.

10

GEO is a private corporation that has owned and operated the Northwest Detention

11 Center (NWDC), a 1,500 bed detention facility, since 2005. Dkt. 1 at ¶¶4.1, 4.2. GEO operates

12 the NWDC based on a contract with ICE (“the GEO-ICE Contract”). Dkts. 19, 45-3. GEO takes

13 care of immigration detainees awaiting resolution of immigration matters and relies on detainees

14 for a wide range of services under the Voluntary Work Program (VWP) required by the contract.

15 Id. at ¶¶4.5. GEO compensates detainees at $1 per day. Id. at ¶4.7.

16

Plaintiff initiated this action under the theory that the GEO-ICE Contract at least allows

17 for, if not requires, GEO to compensate detainees working in the VWP at least the minimum

18 wage required by with the State Minimum Wage Act (MWA). Dkt. 1 at ¶¶4.10-4.12. In support

19 of its theory, Plaintiff primarily relies on three terms of the GEO-Ice Contract: (1) GEO must

20 compensate detainees participating in the VWP “at least $1 per day” under the “ICE/DHS

21 Performance Base [sic] [National] Detention Standards” (PBNDS), expressly incorporated by the

22 contract; (2) GEO must operate according to the “most current . . . constraints,” including

23 “applicable federal, state and local labor laws and codes”; and (3) where the contract conflicts

24

ORDER ON DEFENDANT THE GEO GROUP INC.’S MOTION FOR ORDER OF DISMISSAL BASED ON PLAINTIFF’S FAILURE TO JOIN REQUIRED GOVERNMENT PARTIES - 2

Case 3:17-cv-05769-RJB Document 67 Filed 04/26/18 Page 3 of 10

1 with “all applicable federal state and local laws and standards . . . the most stringent shall apply.”

2 Dkt. 19 at 46-48, 56; Dkt. 45-3 at 8.

3

Defendant rejects Plaintiff’s theory and maintains that the GEO-ICE Contract prohibits

4 GEO from acting as an ‘employer’ to detainees working in the VWP. In support of its theory,

5 Defendant relies on the history, custom, and practice of the VWP and on an itemized

6 “services/supplies” description for the “Detainee Volunteer Wages for the Volunteer Program”

7 found in the GEO-ICE Contract. Dkt. 19 at 9. The description specifies that “[r]eimbursement

8 for this line item will be at the actual cost of $1.00 per day per detainee” and that the “Contractor

9 [GEO] shall not exceed the amount shown without prior approval” by ICE. Id. Defendant also

10 relies on provisions of the contract describing background and clearance procedures and

11 practices for hiring “employees,” such as use of E-Verify and the prohibition of employing

12 “illegal or undocumented aliens.” Id. at 72-75. GEO argues that paying MWA rates to detainees

13 working in the VWP would violate the GEO-ICE Contract.

14

Acknowledged by both parties are GEO-ICE Contract terms allowing GEO to request

15 contract pricing modifications and obliging GEO to indemnify ICE against all claims arising out

16 of GEO’s operation of the NWDC. Dkt. 19 at 56, 105, 106, 367.

17

The Complaint requests the following relief: class certification, damages for lost wages,

18 costs, fees, and interest. Dkt. 1 at 5. GEO is the sole defendant named. Id. at ¶3.2.

19

In the instant motion, Defendant seeks dismissal for Plaintiff’s failure to join ICE.

20

II. DISCUSSION

21 A. Joinder under Rule 19.

22

Joinder is governed by Fed. R. Civ. P. 19, a rule that imposes a three-step inquiry:

23

1. Is the absent party “necessary” under Rule 19(a)?

24

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Case 3:17-cv-05769-RJB Document 67 Filed 04/26/18 Page 4 of 10

1

2. If so, is it feasible to order joinder of the absent party?

2

3. If joinder is not feasible, is the party “indispensable” under Rule 19(b) such that in

“equity and good conscience” the suit can proceed short of dismissal?

3

Salt River Project Agr. Imp. and Power Dist. v. Lee, 672 F.3d 1176, 1179 (9th Cir. 2012). Rule

4

19 analysis is “a practical, fact-specific one, designed to avoid the harsh results of rigid

5

application.” Dawavendewa v. Salt River Project Agr. Imp. and Power Dist., 276 F.3d 1150,

6

1155 (9th Cir. 2002).

7

1. Is ICE a necessary party under Rule 19(a)?

8

Rule 19(a)(1) provides:

9

(1) Required Party. A person who is subject to service of process and whose joinder will

10

not deprive the court of subject-matter jurisdiction must be joined as a party if:

11

(A) in that person's absence, the court cannot accord complete relief among existing parties; or

12

(B) that person claims an interest relating to the subject of the action and is so

situated that disposing of the action in the person's absence may:

13

(i) as a practical matter impair or impede the person's ability to protect the

14

interest; or

(ii) leave an existing party subject to a substantial risk of incurring double,

15

multiple, or otherwise inconsistent obligations because of the interest.

16 Fed. R. Civ. P. 19(a)(1).

17

a. Fed. R. Civ. P. 19(a)(1)(A).

18

The Court can accord complete relief among existing parties. See Fed. R. Civ. P.

19 19(a)(1)(A). All relief sought by Plaintiff can be obtained from GEO without ICE.

20

Defendant argues that complete relief cannot be obtained among existing parties because

21 the day rate of $1 is fixed by ICE and cannot be adjusted without ICE’s consent. Dkt. 51 at 12.

22 To bolster its conclusion, Defendant cites two provisions of the GEO-ICE Contract, an opinion

23 letter by the Department of Defense, and 8 U.S.C. § 1555(d). Id. at FN 35, 36. The first page of

24 the contract cited, page eighty-two (82), simply incorporates the PBNDS. See Dkt. 19 at 9. The

ORDER ON DEFENDANT THE GEO GROUP INC.’S MOTION FOR ORDER OF DISMISSAL BASED ON PLAINTIFF’S FAILURE TO JOIN REQUIRED GOVERNMENT PARTIES - 4

Case 3:17-cv-05769-RJB Document 67 Filed 04/26/18 Page 5 of 10

1 second page of the contract cited, page nine (9), includes a clause that describes

2 “reimbursement” of $114,975 for the “Detainee Volunteer Wages for the Detainee Work

3 Program . . . at the actual cost of $1.00 per day per detainee,” and GEO “shall not exceed the

4 amount shown without prior approval” by ICE. Id. The clause can be interpreted in at least two

5 ways: In Defendant’s view, ICE’s reimbursement rate is also limit on detainee rate of pay; in

6 Plaintiff’s view, ICE’s reimbursement rate limits the amount reimbursed to GEO but does not

7 limit the detainee rate of pay. Interpretation of this clause remains an open question.

8

Next, Defendant relies on a 1992 opinion letter issued by the General Counsel to the

9 Department of Defense on the issue of whether “aliens may perform general labor at the Naval

10 Air Facility, so long as performance is voluntary . . . not unduly hazardous, and the aliens remain

11 in [DHS] custody.” Dkt. 51 at FN 35, 36. Your CO 243-C Memorandum of November 15, 1991;

12 DOD Request for Alien Labor, 1992 WL 1369402, at *2. How this opinion, which makes no

13 mention of the MWA, should influence interpretation of the GEO-ICE Contract, remains an open

14 question.

15

Finally, Defendant cites 8 U.S.C. § 1555(d), which provides that congressional

16 appropriations for immigration service expenses “shall be available for payment of . . . (d)

17 payment of allowances (at such a rate as may be specified from time to time in the appropriation

18 Act involved) to aliens, while held in custody . . . for work performed[.]” Id. The Court

19 previously commented that “although § 1555(d) is still in effect, Congress has not specified any

20 rate for detainee work since fiscal year 1979.” Dkt. 28 at 9.

21

The Court is reluctant to delve into contract interpretation prior to the completion of

22 discovery, except to find that, at present, Defendant has not shown that there cannot be complete

23

24

ORDER ON DEFENDANT THE GEO GROUP INC.’S MOTION FOR ORDER OF DISMISSAL BASED ON PLAINTIFF’S FAILURE TO JOIN REQUIRED GOVERNMENT PARTIES - 5

Case 3:17-cv-05769-RJB Document 67 Filed 04/26/18 Page 6 of 10

1 relief among the parties, because its argument is premised on only one of multiple plausible

2 interpretations of the GEO-ICE Contract.

3

Defendant analogizes this case to Dawavendewa, arguing that “[w]hen a plaintiff sues

4 one party to a contract over actions that relate to that contract, the absent contracting party is a

5 required party.” Dkt. 51 at 9. In Dawavendewa, the Ninth Circuit concluded that complete relief

6 could not be accorded to the plaintiff, “[e]ven if ultimately victorious,” because judgment in

7 plaintiff’s favor would put the defendant “between the proverbial rock and a hard place—comply

8 with the injunction prohibiting the hiring preference policy or comply with the [Navajo Nation]

9 lease requiring it.” Dawavendewa, 276 F.3d at 1155.

10

In this case, at least arguably, no such ‘rock and a hard place’ exists, because Plaintiff’s

11 theory points to the likelihood of harmony between GEO’s contractual obligation and complying

12 with the MWA. Under Plaintiff’s theory, the plausibility of which the Court previously

13 addressed, see Dkt. 28, whether detainees are “employees” is a fact-driven question informed by

14 whether GEO acts like an “employer” under the MWA. For the same reason Dawavendewa can

15 be distinguished, GEO’s reliance on E.E.O.C. v. Peabody Western Coal Co., 400 F.3d 774, 780

16 (9th Cir. 2005), fails. In this case, at least arguably, no such impossible predicament precludes

17 complete relief among existing parties exists.

18

b. Fed. R. Civ. P. 19(a)(1)(B)(i) and (ii).

19

ICE does not have a legally protected interest in this case. See Fed. R. Civ. P.

20 19(a)(1)(B)(i) and (ii).

21

At least as of March 7, 2018, when members of Congress sent a letter to ICE, ICE has

22 had general knowledge of the litigation. Dkt. 52 at 5. Furthermore, by contract, GEO is

23 apparently required to notify ICE of this case within five days of its filing. Dkt. 19 at 57. It is

24

ORDER ON DEFENDANT THE GEO GROUP INC.’S MOTION FOR ORDER OF DISMISSAL BASED ON PLAINTIFF’S FAILURE TO JOIN REQUIRED GOVERNMENT PARTIES - 6

Case 3:17-cv-05769-RJB Document 67 Filed 04/26/18 Page 7 of 10

1 undisputed that ICE has not appeared in this case, the related class action case, or any similar

2 cases. ICE has not asserted any interest in the case. Defendant has speculated that an increase in

3 detainee wages could result in a contract modification regarding reimbursement from ICE to

4 GEO. That points only to a potential financial interest. However, “The interest must be more

5 than a financial stake, and more than speculation about a future event.” Makah Indian Tribe v.

6 Verity, 910 F.2d 555, 559 (9th Cir. 1990).

7

Because ICE does not have an interest in the case, it is not a necessary party under either

8 subsection (i) or (ii) of Fed. R. Civ. P. 19(a)(1)(B). However, assuming that ICE has an interest

9 in the case, resolving the case does not necessarily impair or impede ICE’s ability to protect its

10 interest, under subsection (i), and does not leave GEO subject to inconsistent obligations, under

11 subsection (ii).

12

Considering subsection (i), it appears that Defendant has not argued that the ‘impair or

13 impede’ subsection applies. See Dkt. 51 at 9-14; Dkt. 56 at 9-13. Defendant made no mention of

14 subsection (i) at oral argument. The Court observes that Plaintiff does not seek relief to set aside

15 or modify the GEO-ICE Contract. Furthermore, if Plaintiff prevails, GEO could still comply with

16 the GEO-ICE Contract, because any judgment would not invalidate or set aside the contract. See

17 Dawavendewa, 276 F.3d at 1157; Disabled Rights Action Committee v. Las Vegas Events, Inc.,

18 375 F.3d 861, 881 (9th Cir. 2004).

19

Considering subsection (ii), whether ICE’s absence leaves GEO subject to inconsistent

20 obligations, Defendant’s showing is insufficient. See Fed. R. Civ. P. 19(a)(1)(B)(ii). Defendant

21 argues that two inconsistent obligations would result if Plaintiff prevails. Defendant first points

22 to the outcome if GEO is required to compensate detainees at or above the State minimum wage,

23 rather than at $1 per day. Dkt. 56 at 10. Such an outcome, in Defendant’s view, does not reflect

24

ORDER ON DEFENDANT THE GEO GROUP INC.’S MOTION FOR ORDER OF DISMISSAL BASED ON PLAINTIFF’S FAILURE TO JOIN REQUIRED GOVERNMENT PARTIES - 7

Case 3:17-cv-05769-RJB Document 67 Filed 04/26/18 Page 8 of 10

1 the intent of the contractor and author of the contract, ICE, but if ICE’s opinion is ambiguous,

2 “ICE should be in the case to explain its view[.]” Id. at 10. A need for ICE’s evidence does not

3 make its joinder necessary.

4

Defendant also points to the outcome if GEO is declared an “employer” of detainee

5 “employees.” According to Defendant, such a declaration would conflict with terms of the GEO-

6 ICE Contract, which requires GEO to perform pre-suitability employment checks and hire only

7 lawful permanent residents and U.S. citizens and persons with the requisite (lack of) criminal

8 arrests. Dkt. 56 at 10. If GEO is violating its contract with ICE, that appears to be beyond the

9 issues raised by the Complaint.

10

Both outcomes described by Defendant presuppose that the MWA cannot be reconciled

11 with other contractual and legal obligations, but as discussed above, Plaintiff’s theory points to

12 the likelihood of harmony. The Court need not belabor the point, particularly because this Order

13 makes no final finding on the correct interpretation of the GEO-ICE Contract.

14

In sum, the Court finds that ICE is not a necessary party under Rule 19(a).

15

2. Is it feasible to join ICE?

16

Federal agencies are protected from suit, except where Congress has spoken. Dep’t of

17 Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999). According to Defendant, Congress has not

18 waived the federal agency’s sovereign immunity and ICE has not itself consented to be sued.

19 Dkt. 51 at 14, 15. Plaintiff has not made any showing to the contrary, where it argues, by

20 incorporating a footnote, only that “the doctrine of sovereign immunity would not preclude GEO

21 from impleading DHS/ICE as a third party for purposes of declaratory and injunctive relief”

22 when challenging a final agency action under the Administrative Procedure Act. Dkt. 62 at 3;

23

24

ORDER ON DEFENDANT THE GEO GROUP INC.’S MOTION FOR ORDER OF DISMISSAL BASED ON PLAINTIFF’S FAILURE TO JOIN REQUIRED GOVERNMENT PARTIES - 8

Case 3:17-cv-05769-RJB Document 67 Filed 04/26/18 Page 9 of 10

1 State of Washington v. The GEO Group Inc., W.D.Wash. Cause No. 17-56580, Dkt. 53 at FN 8

2 (emphasis added). The footnote does not address the feasibility of joinder as to all claims here.

3

For purposes of this motion, the Court assumes that it is not feasible to join ICE.

4

3. Is ICE an indispensable party under Rule 19(b)?

5

ICE is not a necessary party, but to complete the analysis, the Court should assume that it

6 is a necessary party and cannot feasibly be joined. Then the Court should consider whether ICE

7 is an indispensable party. A party is “indispensable” for Rule 19(b) purposes if the action should

8 proceed “in equity and good conscience,” considering the following non-exhaustive factors:

9

 The extent to which a judgment rendered in the person’s absence might prejudice that

person or the existing parties;

10

 The extent to which any prejudice could be lessened or avoided by: (A) protective

11

provisions in the judgment; (B) shaping the relief; or (C) other measures;

12

 Whether a judgment rendered in the person’s absence would be adequate; and

13

 Whether the plaintiff would have an adequate remedy if the action were dismissed for

nonjoinder.

14

Fed. R. Civ. P. 19(b); White v. Univ. of California, 765 F.3d 1010, 1027-28 (9th Cir.2014).

15

The first factor, prejudice, weighs heavily in favor of Plaintiff. ICE suffers no more

16

prejudice as an absent party than if it participates. Plaintiff does not seek relief from ICE, and,

17

assuming an outcome in favor of Plaintiff, the GEO-ICE Contract will remain intact. ICE is fully

18

capable of protecting itself. The prejudice to Defendant is no more than if ICE participates.

19

The next factor, lessening prejudice with mitigating measures, favors neither party

20

because there is no prejudice to ICE, and, as GEO acknowledges, there are no mitigating

21

measures available. Dkt. 51 at 16.

22

The final two factors favor Plaintiff. Again, assuming Plaintiff’s theory of the case

23

prevails, Plaintiff will have obtained its remedy with the GEO-ICE Contract unchanged and

24

ORDER ON DEFENDANT THE GEO GROUP INC.’S MOTION FOR ORDER OF DISMISSAL BASED ON PLAINTIFF’S FAILURE TO JOIN REQUIRED GOVERNMENT PARTIES - 9

Case 3:17-cv-05769-RJB Document 67 Filed 04/26/18 Page 10 of 10

1 without prejudice to ICE. On the other hand, if the case were dismissed for the failure to join

2 ICE, Plaintiff would be left without a legal remedy.

3

Equity and good conscience, in light of these four factors, weigh in favor of the case

4 proceeding, rather than its dismissal. ICE is not an indispensable party under Rule 19(b).

5 B. Conclusion.

6

In summary, ICE is not a necessary or an indispensable party under Rule 19. Dismissal

7 for non-joinder is not warranted. Defendant’s motion should be denied.

8

This Order makes no finding as to whether Defendant could add ICE as a third party

9 defendant.

10

* * *

11

THEREFORE, it is HEREBY ORDERED that The GEO Group Inc.’s Motion for Order

12 of Dismissal Based on Plaintiff’s Failure to Join Required Government Parties (Dkt. 51) is

13 DENIED.

14

The Clerk is directed to send uncertified copies of this Order to all counsel of record and

15 to any party appearing pro se at said party’s last known address.

16

Dated this 26th day of April, 2018.

17 18

A

19

ROBERT J. BRYAN United States District Judge

20

21

22

23

24

ORDER ON DEFENDANT THE GEO GROUP INC.’S MOTION FOR ORDER OF DISMISSAL BASED ON PLAINTIFF’S FAILURE TO JOIN REQUIRED GOVERNMENT PARTIES - 10

 
 Case 3:17-cv-05769-RJB Document 114 Filed 08/06/18 Page 1 of 4

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT TACOMA

10

11

UGOCHUKWU GOODLUCK NWAUZOR and FERNANDO AGUIRRE

12

URBINA, individually and on behalf of all those similarly situated,

13 v.
14

Plaintiffs,

THE GEO GROUP, INC., a Florida

15

corporation,

CASE NO. 3:17-cv-05769-RJB
ORDER ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND DEFENDANT’S MOTION TO DENY CLASS CERTIFICATION

16

Defendant.

17

THIS MATTER comes before the Court on Plaintiffs’ Motion for Class Certification and

18 Defendant’s Motion to Deny Class Certification. Dkts. 69, 86. The Court has considered the

19 motions, the pleadings filed in support of and opposition to the motions, and the remainder of the

20 file herein. The Court also considered oral argument on August 2, 2018.

21

GEO’s core opposition to class certification centers on the argument that Plaintiffs are

22 “unemployable” by GEO because they lack work authorization, so they cannot represent the

23 proposed class of detainees seeking for lost wages under the State Minimum Wage Act (MWA).

24

ORDER ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND DEFENDANT’S MOTION TO DENY CLASS CERTIFICATION - 1

Case 3:17-cv-05769-RJB Document 114 Filed 08/06/18 Page 2 of 4

1 GEO has interwoven this argument in its briefing for both motions. See, e.g., Dkt. 69 at 15-23;

2 Dkt. 95 at 5, 6, 14; Dkt. 99 at 9-15. The argument begins from a premise, one of at least two

3 plausible interpretations of the GEO-ICE Contract and related Volunteer Work Program (VWP)

4 policies, but ignores the second plausible interpretation of the same. While the argument is not

5 frivolous, the Court now declines to make the findings urged by GEO, and class certification

6 should not be denied on such grounds.

7

The Court HEREBY FINDS:

8

1. The proposed class meets the criteria of Fed. R. Civ. P. 23(a):

9

A. Evidence presented by Plaintiffs indicates that the proposed class

10

comprises at least several hundred individuals, satisfying Fed. R. Civ. P. 23(a)(1).

11

B. Common issues of law and fact satisfy Fed. R. Civ. P. 23(a)(2), including:

12

whether proposed class members have an employment relationship with GEO for MWA

13

purposes, given inter alia, terms of the GEO-ICE Contract, the 2011 Performance Based

14

National Detention Standards, various policies of GEO and ICE, and federal law; and

15

whether Plaintiffs’ MWA claim should be preempted by federal law. Common answers

16

will resolve these common issues.

17

C. Plaintiffs’ claims are typical of the claims of the class, satisfying Fed. R.

18

Civ. P. 23(a)(3), because the claims arise from evidence pointing to a common course of

19

conduct, that is, participation in the VWP at the Northwest Detention Center, and the

20

same alleged injury, that is, compensation at $1 per day of work, an amount not

21

commensurate with the MWA.

22

23

24

ORDER ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND DEFENDANT’S MOTION TO DENY CLASS CERTIFICATION - 2

Case 3:17-cv-05769-RJB Document 114 Filed 08/06/18 Page 3 of 4

1

D. Plaintiffs are adequate class representatives, satisfying Fed. R. Civ. P.

2

23(b)(3), because there are no conflicts with the other members of the proposed class and

3

they appear willing and able to prosecute this case vigorously on behalf of the class.

4

2. The proposed class satisfies the criteria of Fed. R. Civ. P. 23(b)(3):

5

A. The common questions identified predominate over other issues, including

6

damages.

7

B. A class action is the superior method of adjudicating these claims and

8

defenses, because class adjudication promotes the fair and efficient litigation of the case,

9

given: (1) high costs of litigating threshold issues and potentially nominal recovery for

10

individual proposed class members; (2) no other similar litigation by the same plaintiffs,

11

except insofar as this case overlaps with State of Washington v. The GEO Group, Inc.,

12

W.D.Wash. Case No. 17-5860, a case with unique issues specific to the State as the

13

plaintiff; (3) proposed class members may have individual impediments to their ability to

14

individually litigate the case.

15

3. Plaintiffs’ counsel is competent to represent the class and has shown the ability

16 and willingness to prosecute this case vigorously on behalf of the class, satisfying Fed. R. Civ. P.

17 23(g).

18

THEREFORE, it is HEREBY ORDERED:

19

1. Defendant’s Motion to Deny Class Certification (Dkt. 69) is DENIED.

20

2. Plaintiffs’ Motion for Class Certification (Dkt. 86) is GRANTED pursuant to Fed.

21 R. Civ. P. 23(a) and 23(b)(3).

22

3. The class shall be defined as:

23

24

ORDER ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND DEFENDANT’S MOTION TO DENY CLASS CERTIFICATION - 3

Case 3:17-cv-05769-RJB Document 114 Filed 08/06/18 Page 4 of 4

1

All civil immigration detainees who participated in the Voluntary Work Program

at the Northwest Detention Center at any time between September 26, 2014, and

2

the date of final judgment in this matter.

3

4. Plaintiffs Ugochuk Goodluck Nwauzor and Fernando Aguirre-Urbina are

4 appointed as representative of the class pursuant to Fed. R. Civ. P. 23.

5

5. Adam J. Berger, Jamal N. Whitehead, and Lindsay L. Halm of Schroeter

6 Goldmark & Bender, R. Andrew Free of the Law Office of R. Andrew Free, Devin T. Theriot-

7 Orr of Sunbird Law, PLLC, and Meena Menter of Menter Immigration Law PLLC are appointed

8 as Class Counsel pursuant to Fed. R. Civ. P. 23(g).

9

6. The parties are directed to confer on the form of Class Notice and preparation of a

10 class list and notice plan. The parties shall jointly present a proposed Class Notice and notice

11 plan to the Court within 30 days of the date of this Order. If they cannot agree on a form of Class

12 Notice and notice plan within that time, each party shall submit its proposed Class Notice and

13 notice plan along with an explanatory statement not to exceed six (6) pages within 30 days of the

14 date of this Order.

15

7. To the extent that Defendant has objected to producing discovery because a class

16 has not been certified, the objection is now moot, and Defendant must now produce the

17 discovery.

18

IT IS SO ORDERED.

19

The Clerk is directed to send uncertified copies of this Order to all counsel of record and

20 to any party appearing pro se at said party’s last known address.

21

Dated this 6th day of August, 2018.

22

A

23

ROBERT J. BRYAN

24

United States District Judge

ORDER ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND DEFENDANT’S MOTION TO DENY CLASS CERTIFICATION - 4

 
 Case 3:17-cv-05769-RJB Document 175 Filed 05/28/19 Page 1 of 2

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

8

AT TACOMA

9

STATE OF WASHINTON,

10 v.

Plaintiffs,

11 THE GEO GROUP, INC.,

12 Defendant.

13

14

STATE OF WASHINTON,

15

v.

Plaintiff,

16

THE GEO GROUP, INC.,

17

Defendant.

18

CASE NO. C17-5769RJB
CASE NO. C17-5806RJB SUPPLEMENT TO ORAL RULING

19 Defendant moved, in both of the above cases, “To Dismiss, Stay Or Consolidate Related
20 Litigation.” On May 28, 2019, the Court heard oral argument, and orally ruled, denying the
21 portion of the motions to dismiss or stay, and denying in part and granting part the motion to
22 consolidate. The order consolidated liability issues, and denied (without prejudice) damage
23

24

SUPPLEMENT TO ORAL RULING - 1

Case 3:17-cv-05769-RJB Document 175 Filed 05/28/19 Page 2 of 2

1 issues. In the Court’s oral ruling, the court intended to make the following findings, but

2 inadvertently omitted them. Therefore, the Court now supplements its oral ruling as follows:

3

1. Substantially the same evidence on liability would be presented in both cases;

4

2. Both cases allege the same wrong;

5

3. Both cases arise out of the same transactional nucleus of facts;

6

4. Different results in each case would raise many difficult issues that can be avoided by

7

consolidation of liability issues;

8

5. Consolidation of liability issues will promote judicial economy;

9

6. Consolidation of liability issues will expedite final resolution of the case;

10

7. Consolidation of liability issues will avoid inconsistent results, and will provide all

11

parties an equal opportunity to address liability issues and

12

8. Consolidation of liability issues will not prejudice any party. (The Court is aware that

13

this Order, unfortunately, may delay conclusion of the State’s case by some six

14

months. That is not sufficient prejudice to trump the benefits of such consolidation.)

15

IT IS SO ORDERED.

16

The Clerk is directed to send uncertified copies of this Order to all counsel of record and

17 to any party appearing pro se at said party’s last known address.

18

Dated this 28th day of May, 2019.

19

A

20 ROBERT J. BRYAN

21

United States District Judge

22

23

24

SUPPLEMENT TO ORAL RULING - 2

 
 Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 1 of 18

1

The Honorable Robert J. Bryan

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON AT TACOMA

8

9 STATE OF WASHINGTON,

Civil Action No. 17-5806 RJB

10

Plaintiff,

11

v.

12 THE GEO GROUP, INC.,

13

Defendant.

14

STATEMENT OF INTEREST OF THE UNITED STATES

15

16

17

18

19

20

21

22

23

24

25

26

STATEMENT OF INTEREST OF THE UNITED STATES State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 2 of 18

1

The United States submits this Statement of Interest to address an aggressive and legally

2 unjustified effort by the State of Washington to interfere with federal immigration enforcement.1

3 The State of Washington excludes its state inmates from the minimum wage—and according to

4 state policy documents, pays them as little as thirty-four to sixty-five cents an hour—yet it seeks

5 to impose the state minimum wage of $12 per hour for individuals in federal immigration

6 detention. This is a quintessential violation of intergovernmental immunity principles. Federal

7 contractors, including the GEO Group, operate residential facilities for immigration detainees on

8 behalf of U.S. Immigration and Customs Enforcement “(ICE”). Under a Voluntary Work

9 Program specifically authorized (and required) by ICE, the GEO Group allows detainees in its

10 facilities to perform work. Although the GEO Group’s contract with ICE specifies that the federal

11 government will pay GEO $1 a day for work performed by detainees, Washington wants GEO to

12 pay much more. The State insists that these federal immigration detainees are “employees” under

13 state law, even though it simultaneously exempts similarly-situated detainees in state facilities

14 from the minimum wage. Basic constitutional principles prevent a State from interfering with the

15 federal government’s activities in the way Washington is trying to do here.

16

The United States has a strong interest in countering discriminatory state efforts to regulate

17 federal contractors, in the proper application of the Supremacy Clause, and in the foundational

18 principles that protect the Federal Government from unlawful state interference. The United

19 States accordingly submits that the doctrine of intergovernmental immunity precludes application

20 of Washington’s Minimum Wage Act (“MWA”), RCW 49.46.0001 et seq. (2019), to the GEO

21 Group, Inc. (“GEO”), a federal contractor, because the MWA unlawfully discriminates against

22 “the Federal Government and those with whom it deals.” North Dakota v. United States, 495

23 U.S. 423, 438 (1990). Specifically, the State exempts its detainees from the minimum wage, yet

24 seeks to impose that wage on federal detention operations. Further, the MWA exempts state and

25

26

1 28 U.S.C. § 517 authorizes the Attorney General to attend to the interests of the United

States as a non-party in a suit pending in a court of the United States.

STATEMENT OF INTEREST OF THE UNITED STATES-1 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 3 of 18

1 private corporations with whom the State of Washington contracts—but not the Federal

2 Government and those with whom it contracts—from paying minimum wage to institutionalized

3 persons for their work. Intergovernmental immunity bars application of the statute to GEO.

4

The United States recognizes that the Court rejected GEO’s intergovernmental immunity

5 argument at an earlier stage of the litigation (albeit without the benefit of the United States’

6 views). Given the importance of this matter and the issues it raises under the Supremacy Clause,

7 however, the United States respectfully urges the Court to find that the doctrine of

8 intergovernmental immunity bars the State of Washington from enforcing the MWA against

9 GEO.2

10

BACKGROUND

11

Congress authorizes DHS to pay an “allowance[] (at such rate as may be specified from

12 time to time in the appropriation Act involved) to aliens, while held in custody under the

13 immigration laws, for work performed.” 8 U.S.C. § 1555(d). In 1979, Congress appropriated

14 funds to provide for “payment of allowances (at a rate not in excess of $1 per day) to aliens, while

15 held in custody under the immigration laws, for work performed.” Appropriations Act for Fiscal

16 Year 1979, Pub. L. No. 95-431, tit. II, 92 Stat. 1021 (1978). Since 1979, Congress has not directly

17 appropriated funds to pay the allowances, nor has it set a rate different than the $1 per day rate set

18 in that Act. See Declaration of Tae Johnson (“Johnson Decl.) ¶ 13, ECF No. 91. The work

19 program created by this law has been known as the “Voluntary Work Program,” and ICE detention

20 standards require it to be offered by detention facilities and provide that “compensation is at least

21 $1.00 (USD) per day.” See 2011 Operations Manual ICE Performance-Based National Detention

22 Standards (PBNDS), Part 5.8, VI.C, https://www.ice.gov/doclib/detention-standards/2011/5-

23 8.pdf.

24

25

2 Although the Court ruled on intergovernmental immunity at an earlier stage of the

26

litigation, the Court is free to reconsider that issue at “‘any time before the entry of judgment.’” City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 888 (9th Cir. 2001)

(emphasis in original) (quoting United States v. Houser, 804 F.2d 565, 567 (9th Cir. 1986)).

STATEMENT OF INTEREST OF THE UNITED STATES-2 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 4 of 18

1

GEO operates the Northwest Detention Center in Tacoma, Washington under contract

2 with United States Immigration and Customs Enforcement (“ICE”). Johnson Decl. ¶ 8, ECF No.

3 91. The Northwest Detention Center houses aliens ICE has arrested on probable cause to believe

4 that they are removable from the United States under federal immigration law. Id. ¶ 10; see also

5 8 U.S.C. §§ 1182(a) (classes of inadmissible aliens), 1225(b) (detention of aliens applying for

6 admission), 1226 (detention of aliens pending removal proceedings), 1227(a) (classes of

7 deportable aliens), and 1231(a) (detention of aliens ordered removed). Through its contracts, ICE

8 requires that all facilities where such individuals are detained on its behalf adhere to certain

9 standards and operate in accordance with certain specifications, including the requirement to

10 provide a Voluntary Work Program for detainees. Id. ¶¶ 10-11. ICE’s purpose in requiring a

11 Voluntary Work Program is to decrease detainee idleness, improve detainee morale, and reduce

12 disciplinary incidents. Id. ¶ 11. At the Northwest Detention Center, detainees participating in

13 that program must receive at least $1 per day for their voluntary work. Id. ¶ 13.

14

This work program operates similarly to the program Washington State operates at its own

15 detention facilities. Residents of those State-managed facilities are exempted from the MWA.

16 See RCW 49.46.010(3)(k) (exempting any “[a]ny resident, inmate, or patient of a state, county,

17 or municipal correctional, detention, treatment or rehabilitative institution”). And Washington

18 operates a work program that pays wages well below minimum wage—at rates that State policy

19 documents indicate range from $55 per month (which is around 35 cents per hour for four 40 hour

20 weeks of work) for certain work programs, to an hourly wage ranging from 65 cents to $2.70

21 under another program. Offender Work Program Policies 700.100 & 710.400, available at

22 https://www.doc.wa.gov/information/policies/default.aspx?show=700.

23

The State of Washington filed this action in state court in September 2017, alleging that

24 GEO violated the MWA and was unjustly enriched by compensating civil immigration detainees

25 housed at its facilities $1 per day for their work. See Complaint ¶ 1.4, ECF No. 1-1. GEO timely

26 removed the action to this Court. See Notice of Removal, ECF No. 1.

STATEMENT OF INTEREST OF THE UNITED STATES-3 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 5 of 18

1

In November 2018, GEO moved for summary judgment on Washington’s cause of action

2 under the MWA, arguing that the doctrine of intergovernmental immunity barred Washington’s

3 claim. Def.’s Mot. for Summ. J. on Pl.’s First Cause of Action (“Mot. for Summ. J.”), ECF No.

4 149. The Court denied GEO’s motion, concluding that the MWA “does not discriminate against

5 the Federal Government” because it “is neutral on its face.” Order Den. Def.’s Mot. for Summ.

6 J. on Pl.’s First Cause of Action (“Order Den. Def.’s MSJ”) 9, ECF No. 162. In denying GEO’s

7 motion to reconsider that decision, the Court tacitly recognized that the MWA does not apply to

8 state detainees, distinguishing the detainees at issue here from state detainees on the ground that

9 they “are not residents of a ‘state, county, or municipal […] institution’” and “are not ‘state

10 inmates.’” Order Den. Def.’s Mot. for Reconsideration of Order Den. Mot. for Summ. J. on First

11 Cause of Action 2, ECF. No. 165 (alteration in original). On August 6, 2019, the Court issued an

12 order on the Parties’ Cross Motions for Summary Judgment, which, inter alia, granted the State’s

13 motion to dismiss GEO’s preemption defense. Order on Cross Mots. for Summ. J. 1-2, ECF No.

14 288.

15

DISCUSSION

16

This case presents a compelling example of a State discriminating against the Federal

17 Government and those with whom it deals. When a resident of a state detention facility performs

18 work, Washington allows itself to pay that resident less than the minimum wage. But when a

19 resident of a detention facility operated for the Federal Government by a federal contractor

20 performs work, Washington insists that the federal contractor pay the resident the full state

21 minimum wage. Under the longstanding doctrine of intergovernmental immunity, Washington’s

22 approach can be justified only if significant differences between the two classes justify the

23 differential treatment. But there are no such significant differences here, because work is

24 permitted under both the federal immigration detention scheme and the state detention scheme.

25 While Congress has authorized DHS to use private contractors to conduct these detention

26 operations, “[f]or purposes of intergovernmental immunity, federal contractors are treated the

STATEMENT OF INTEREST OF THE UNITED STATES-4 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 6 of 18

1 same as the federal government itself,” United States v. California, 921 F.3d 865, 882 n.7 (9th

2 Cir. 2019), and the relevant question is whether federal detention contractors are similarly situated

3 to state detention facilities for purposes of the MWA. By requiring federal detention contractors

4 to pay the minimum wage but relieving similarly-situated state facilities from that obligation, the

5 State accordingly runs afoul of basic principles of intergovernmental immunity that have shielded

6 federal activities from state interference since the Founding.

7

Like preemption, intergovernmental immunity is grounded in the Supremacy Clause. See

8 United States v. California, 921 F.3d 865, 878 (9th Cir. 2019) (“The doctrine of intergovernmental

9 immunity is derived from the Supremacy Clause, which mandates that the activities of the Federal

10 Government are free from regulation by any state.”) (citation and internal quotation marks

11 omitted); Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 108 (1992) (“[U]nder the

12 Supremacy Clause, from which our pre-emption doctrine is derived, ‘“any state law, however

13 clearly within a State’s acknowledged power, which interferes with or is contrary to federal law,

14 must yield.”’”) (citation omitted). Under the intergovernmental immunity doctrine, state laws

15 that “discriminate [ ] against the Federal Government or those with whom it deals” “are invalid.”

16 Boeing Co. v. Movassaghi, 768 F.3d 832, 839 (9th Cir. 2014) (quoting North Dakota, 495 U.S. at

17 435 (alteration in original)). “‘A state or local law discriminates against the federal government

18 if it treats someone else better than it treats the government.’” Movassaghi, 768 F.3d at 842

19 (quoting United States v. City of Arcata, 629 F.3d 986, 991 (9th Cir. 2010)) (internal quotation

20 marks omitted).

21

As with preemption, the intergovernmental immunity doctrine is critically important to

22 the Federal Government’s ability to function free from improper interference by the states.

23 Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 128 (1993) (“The purpose of the

24 intergovernmental immunity doctrine is to protect the rights of the Federal Sovereign against state

25 interference.”). Such interference, as here, can occur when state legislation treats the Federal

26 Government or its contractors, i.e., “those with whom it deals,” less favorably than comparable

STATEMENT OF INTEREST OF THE UNITED STATES-5 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 7 of 18

1 state entities—particularly when the federal contractors’ efforts are in service of a federal policy

2 to which the State is opposed. See, e.g., Movassaghi, 768 F.3d at 842-43 (“Boeing cannot be

3 subjected to discriminatory regulations because it contracted with the federal government. . . . SB

4 990 discriminates . . . against Boeing as a federal contractor. Therefore, it is invalid under the

5 doctrine of intergovernmental immunity.”). Thus, “when [a] state law is discriminatory, a private

6 entity with which the federal government deals can assert immunity.” Id. at 842.3

7 I. 8 9

The Doctrine of Intergovernmental Immunity Bars Washington’s Attempt to Apply the MWA against Federal Contractors.
Washington’s attempt to enforce its minimum wage law against GEO unconstitutionally

10 discriminates against a federal contractor for work performed in support of the Federal

11 Government’s enforcement of federal immigration law. Under the MWA, all employers in the

12 State are required to pay their “employees” a minimum wage specified by the statute. RCW
13 49.46.020. But not every person permitted or paid to work is classified as an “employee” under 14
the MWA. See RCW 49.46.010. As relevant here, the definition of “employee[s]” subject to the 15 16 MWA excludes “[a]ny resident, inmate, or patient of a state, county, or municipal correctional,
17 detention, treatment or rehabilitative institution.” RCW 49.46.010(3)(k) (emphasis added). The

18 law does not similarly exclude those who are in federal custody and who the Federal Government

19 does not treat as employees, however, and does not exclude residents of equivalent facilities that
20 house federal inmates, whether operated by the Federal Government or its contractors. See id. 21

22

23

3 Congress provided for a detention scheme that utilizes private contractors and provides for a detainee work program subject to a federally-set allowance rather than a wage subject to

24 federal or other minimum wage laws. See 8 U.S.C. § 1555(d) & 8 U.S.C. § 1231(g). In addition to violating principles of intergovernmental immunity, a State’s imposition of the state minimum
25 wage law on such a scheme would be preempted to the extent it poses an “obstacle to the

26

accomplishment and execution of the full purposes of Congress.” Arizona v. United States, 567 U.S. 387, 399 (2012); see Crosby v. National Foreign Trade Council, 530 U.S. 363, 380 (2000)

(statutory scheme “drawn not only to bar what they prohibit but to allow what they permit”).

STATEMENT OF INTEREST OF THE UNITED STATES-6 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 8 of 18

1 Thus, as written (assuming arguendo it is otherwise applicable), the MWA requires the Federal 2 Government and its contractors to pay minimum wage to individuals in federal custody who are

3 not employees under federal law, but does not require the state and its contractors to pay minimum

4 wage to individuals in State custody, who it deems not to be employees. The MWA thus

5 unconstitutionally discriminates against the Federal Government—and the contractors who
6 operate facilities that house federal detainees. See Movassaghi, 768 F.3d at 839. 7
The State basically concedes most of this. In response to GEO’s previous motion asserting 8 9 intergovernmental immunity, see Def.’s Mot. for Summ. J., ECF No. 149, the State effectively
10 agreed that the statute would be unconstitutional if applied as written to require federally-owned

11 facilities to pay the state minimum wage. Pl.’s Resp. to Def.’s Mot. for Summ. J. 1, ECF No.

12 155. The State thus took the position that—notwithstanding the statutory language—
13 “Washington’s minimum wage laws do not extend to federally owned facilities,” id., because “the 14
intergovernmental immunity component of sovereign immunity doctrine bars Washington from 15
directly regulating the Federal Government.” Id. at 4 n.2. Recognizing “these core principles of 16 17 federalism,” the State explicitly recognized, as it must, that “Washington’s minimum wage laws
18 do not regulate the federal government’s pay practices at any federal detention facility located in

19 Washington State.” Id. at 4-5 n.2.

20

In the State’s view, however, the fact that GEO is a private contractor makes all the

21 difference. The State emphasized (and this Court agreed) that the minimum wage law applies
22 generally to all private entities and thus does not target GEO because of its status as a contractor
23 24 for the Federal Government.4 Order Den. Def.’s MSJ 6-8, ECF No. 162 (citing North Dakota,

25

26

4 Regardless of whether the statutory text targets GEO because it is a federal contractor, this lawsuit, through which the State seeks to impose liability on a federal contractor for its actions

STATEMENT OF INTEREST OF THE UNITED STATES-7 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 9 of 18

1 495 U.S. at 438); id. at 8. This is wrong for two reasons. First, even generally applicable laws 2 are invalid if they treat the state or its associates better than the Federal Government and those
3 with whom it deals. Second, the State’s own interpretation of the MWA makes clear that it is not

4 generally applicable to all private corporations, but rather specifically exempts private

5 corporations from paying minimum wage to individuals detained under state law.

6

A. Generally Applicable Laws that Privilege the State and Those with Whom It

7

Deals over the Federal Government and Those with Whom It Deals Are

Invalid.

8

The Supreme Court has made clear that the intergovernmental immunity doctrine requires

9 invalidation of otherwise generally applicable state laws that treat the state and those with whom
10

11 it deals better than the Federal Government and those with whom it deals. See Davis v. Michigan

12 Department of Treasury, 489 U.S. 803 (1989).

13

In Davis, a state law taxed federal employee retirement benefits, but not similar state

14 employee retirement benefits. Id. at 805-06. Like the MWA, the text of the law was generally
15 applicable, except that it provided a specific exception for the state that did not apply to the 16 Federal Government: “Th[e] statute defines taxable income in a manner that excludes all 17
retirement benefits received from the State or its political subdivisions, but includes most other 18 19 forms of retirement benefits,” including federal retirement benefits. Davis, 489 U.S. at 806. “The

20

21

in administering a federal contract, undoubtedly does. It is precisely to prevent this type of 22 interference with the Federal Government’s effective execution of federal law, whether on its own

23

or through contractors, that the intergovernmental immunity doctrine exists. See, e.g., United States v. Little Lake Misere Land Co., 412 U.S. 580, 608 (1973) (“The doctrine of

24 intergovernmental immunity enunciated in McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579 (1819), however it may have evolved since that decision, requires at least that the United States

25 be immune from discriminatory treatment by a State which in some manner interferes with the

execution of federal laws.”). 26

STATEMENT OF INTEREST OF THE UNITED STATES-8 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 10 of 18

1 effect of this definition is that the retirement benefits of retired state employees are exempt from 2 state taxation while the benefits received by retired federal employees are not.” Id.

3

The Court held the law invalid under the intergovernmental immunity doctrine because

4 the state was unable to justify the distinction between the two classes of retirees. Id. at 814-17.
5 Although federal employees were not targeted specifically by the state law, the statute singled out 6 the state for preferential treatment and did not extend that preferential treatment to the Federal 7
Government and its employees. Id. at 806; cf. RCW 49.46.010(3)(k). Thus, intergovernmental 8 9 immunity applied in Davis because—notwithstanding the statute’s general applicability—the 10 state tax system “discriminate[d] in favor of retired state employees and against retired federal
11 employees.” Davis, 489 U.S. at 814.

12

Importantly, the burden of the challenged statute in Davis did not fall directly on the

13 Federal Government. Instead, the tax was levied on retired federal employees. But this did not
14 prevent the intergovernmental immunity doctrine from invalidating the state law. See Davis, 489
15 U.S. at 814 (“[I]t does not follow that private entities or individuals who are subjected to
16
17 discriminatory taxation on account of their dealings with a sovereign cannot themselves receive

18 the protection of the constitutional doctrine. Indeed, all precedent is to the contrary.”).5

19

But it did not matter that the burden of the law did not fall directly on the Federal

20 Government. Nor did it matter that the law at issue was generally applicable to everyone except
21 employees of the State. All that mattered in Davis was the law treated associates of the State 22
better than it treated associates of the Federal Government. Davis, 489 U.S. at 806; see Phillips 23

24

5 Accordingly, the United States respectfully notes that this Court’s observation that

25

whether or not the MWA applies here “may not affect the Federal Government at all” because ICE need not reimburse GEO for the moneys used to compensate the detainees in the Voluntary

26 Work Program, Order Den. Def.’s MSJ 9, ECF No. 162, has no bearing on whether the

intergovernmental immunity doctrine applies.

STATEMENT OF INTEREST OF THE UNITED STATES-9 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 11 of 18

1 Chem. Co. v. Dumas Indep. Sch. Dist., 361 U.S. 376, 385 (1960) (“[I]t does not seem too much 2 to require that the State treat those who deal with the Government as well as it treats those with

3 whom it deals itself.”).

4

Here, as in Davis, there is little question that the MWA treats the Federal Government and

5 its contractors worse than the State.6 Washington’s own relevant Administrative Policy states
6 that “[r]esidents, inmates, or patients of state, county or municipal correctional, detention, 7
treatment or rehabilitative institution[s] [are] not . . . required to be paid minimum wage if they 8 9 perform work directly for, and at, the institution’s premises where they are incarcerated, and

10 remain under the direct supervision and control of the institution.” State of Washington

11 Department of Labor Industries Employment Standards Administrative Policy: Minimum Wage

12 Act Applicability (2014) (“Administrative Policy”) 5, ECF 160-1 (emphasis added). There is no
13 equivalent exemption for residents, inmates, or patients of federal facilities. Thus, under the
14 MWA’s own terms, state and local detention facilities, regardless of who owns and operates them,
15 need not pay detainees minimum wage for work, while federal facilities, whether operated by the
16 17 Federal Government itself or a federal contractor, must.7 Such discriminatory treatment is barred

18

19

6 The United States respectfully notes that this Court’s observation that “the MWA leaves open the question, and places no limitation on, whether Congress could decree that detainees must

20 be compensated at a certain wage,” Order Den. Def.’s MSJ 8, ECF No. 162, has no bearing on the question of whether the State’s discriminatory attempt to apply its law to GEO in this case is

21 barred by intergovernmental immunity. The fact that the MWA discriminates in favor of the State

and does not extend a similar benefit to the Federal Government and those with whom it deals is 22 enough to trigger the intergovernmental immunity doctrine.

23

7 Washington state law expressly allows private contractors to operate “state, county or

24 municipal correctional, detention, treatment or rehabilitative institution[s]” in a variety of circumstances. See, e.g., RCW 72.09.015(6) (“Correctional facility’ means a facility or institution

25 operated directly or by contract by the secretary for the purposes of incarcerating adults…”)

(emphasis added); RCW 70.48.210(4) (local special detention facility “may be operated by a 26 noncorrectional agency or by noncorrectional personnel by contract with the governing unit”)

STATEMENT OF INTEREST OF THE UNITED STATES-10 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 12 of 18

1 by intergovernmental immunity. See Dumas, 361 U.S. at 379 (holding that statute “discriminates 2 unconstitutionally against the United States and its lessees” because it “imposes a distinctly lesser

3 burden on similarly situated lessees of exempt property owned by the State and its political

4 subdivisions”).8

5

The State’s litigation concession that the MWA—notwithstanding its plain terms—does

6 not apply to federally owned facilities does not change this conclusion. For one, the law as written 7
plainly discriminates against federally managed detention facilities, casting doubt on the post-hoc 8 9 effort to reform a state statute through a litigation concession. Moreover, as noted, “[f]or purposes

10 of intergovernmental immunity, federal contractors are treated the same as the federal government

11 itself,” California, 921 F.3d at 882 n.7, and the relevant inquiry is whether the federal contractor

12 is similarly situated to the state facility for purposes of the MWA. The need to compare the 13

14 (emphasis added); RCW 71.05.020(21) (“Evaluation and treatment facility” includes “any facility

15 which can provide directly, or by direct arrangement with other public or private agencies, emergency evaluation and treatment”) (emphasis added); RCW 71.05.320(1)(a) (court may

16 remand certain individuals to “custody of the department of social and health services or to a

17

facility certified for ninety day treatment . . . for a further period of . . . treatment”) (emphasis added).

18

8 In its Opposition to GEO’s motion, the State focused on the MWA’s applicability to

private corporations generally, rather than addressing the specific statutory provision relevant 19 here, which exempts residents of state institutions. See Pl.’s Resp. to Def.’s Mot. for Summ. J. 7-

20

8, ECF No. 155. That was wrong. To be sure, the North Dakota Court instructed that the “broader regulatory context” must be considered in determining whether the intergovernmental immunity

21 doctrine applies. North Dakota, 495 U.S. at 438. But it did so in the course of explaining that the doctrine did not apply in that case—notwithstanding that the challenged state law treated the

22 Federal Government differently from other actors—because in the context of the broader statutory

23

scheme the challenged state law was actually favorable to the Federal Government. Id. at 43839. Here, by contrast, the relevant state law provision, both when considered on its own and when

24

considered as part of the broader statutory scheme, discriminates in favor of the State and against the Federal Government and other actors. This renders application of the MWA to GEO—which,

25 as a federal contractor, is one with whom the federal government “deals,” see, for example, Movassaghi, 768 F.3d at 842-43—unconstitutional under the intergovernmental immunity

26 doctrine, see North Dakota, 495 U.S. at 438 (intergovernmental immunity doctrine bars state laws

that discriminate against the “Federal Government and those with whom it deals”).

STATEMENT OF INTEREST OF THE UNITED STATES-11 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 13 of 18

1 detention roles of the comparative governments, rather than the method implementing that 2 detention role through public ownership of the facility or private contracting, is most critical in
3 these circumstances. This principle has particular force in the immigration context, where the

4 Ninth Circuit has recognized that the housing of noncitizens “for purposes of civil immigration

5 proceedings” is a quintessential “federal activity.” Id. at 882; see also United States v. California,
6 314 F. Supp. 3d 1077, 1096 (E.D. Cal. 2018) (“Given that immigration enforcement is the 7
province of the Federal Government, it demands no stretch of reason to see that [state laws 8 9 imposing fines on employers who cooperate with federal immigration officials] in effect, target
10 the operations of federal immigration enforcement.”), rev’d in part on other grounds, 921 F.3d

11 865. Indeed, as the Ninth Circuit has noted, “the INA contemplates use of both federal facilities

12 and nonfederal facilities with which the federal government contracts” for the purpose of holding
13 noncitizens pending removal proceedings. California, 314 F.3d at 882 n.7. Any notion that 14
discrimination against a federal contractor housing federal immigration detainees should be 15
allowed when discrimination against the federal government itself would be prohibited is thus 16 17 unsupported. This is all the more true where, as here, the federal contract requires the contractor
18 to take the action that is the subject of the state discrimination—here, to offer detainees the

19 opportunity to work for an allowance. See, e.g., Decl. of Joan K. Mell Attaching GEO-ICE

20 Contract (“GEO-ICE Contract”) 371, ECF No. 19 (listing “Voluntary Work Program” on

21 “Performance Requirements Summary”); 2011 PBNDS, Part 5.8, VI.C,

22 https://www.ice.gov/doclib/detention-standards/2011/5-8.pdf (“Detainees shall be provided the
23 opportunity to participate in a voluntary work program”); Johnson Decl. ¶¶ 10-11.
24

25

The conclusion that intergovernmental immunity prohibits the State from discriminating

26 against federal immigration contractors also applies regardless of whether contractors who own

STATEMENT OF INTEREST OF THE UNITED STATES-12 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 14 of 18

1 and operate state detention facilities are similarly discriminated against under state law. As the 2 Supreme Court explained just last term, the relevant question for purposes of intergovernmental
3 immunity “isn’t whether federal [entities] are similarly situated to state [entities] who don’t

4 receive [the] benefit; the relevant question is whether they are similarly situated to those who do.”

5 Dawson v. Steager, 139 S. Ct. 698, 705–06 (2019). Thus, as in prior cases, the Court rejected

6 “the State’s effort to compare the class of federal [entities] with state [entities] who did not benefit

7 from the . . . exemption rather than those who did.” Id. (emphasis added).
8

9

This inquiry looks to “how the State has defined the favored class.” Id. at 705. The

10 “favored class” in these circumstances are entities that conduct state detention operations, and

11 there is no relevant basis on which to distinguish entities that conduct federal detention

12 operations—whether owned by the federal government or by one of its contractors—from state
13 detention facilities for purposes of Washington’s minimum wage law. Both house individuals 14
involuntarily and offer them the opportunity to receive compensation for performing various 15
activities during their period of detention for detention management purposes that serve aims 16 17 distinct from simply providing compensation for work performed. Accordingly, exempting state
18 detention facilities from having to pay minimum wage while at the same time failing to exempt

19 contractor-owned federal detention facilities (like the Northwest Detention Center) from having

20 to pay minimum wage violates intergovernmental immunity. See North Dakota, 495 U.S. at 438
21 (intergovernmental immunity prohibits a state from “treat[ing] someone else better than” “the 22
Federal Government and those with whom it deals”) (emphasis added). 23

24

25

26

STATEMENT OF INTEREST OF THE UNITED STATES-13 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 15 of 18

1

B. Under the State’s Own Interpretation of the MWA, the Statute Is Not Generally Applicable to All Private Corporations, but Specifically Exempts

2

Companies for Whom State Detainees Work.

3

The MWA also is not “generally applicable” to all private entities involved in detention

4 labor, as the State’s own Administrative Policy makes clear. The Administrative Policy explains 5 that “State inmates assigned by prison officials to work on prison premises for a private

6 corporation at rates established and paid for by the state are not employees of the private

7 corporation and would not be subject to the MWA.” Administrative Policy at 5 (emphasis added). 8 In other words, private contractors with the State for the labor of institutionalized persons are

9 exempt from the Act, but a private contractor with DHS for the detention and labor of

10 institutionalized persons are covered by the Act. Contrary to the State’s claims, then, the MWA 11 is not even “generally applicable” and does not “plac[e] private firms that contract with the

12 Federal Government on equal footing with all other private entities.” Order Den. Def.’s MSJ 6, 13 ECF No. 162. Applying the statute to GEO in these circumstances is unconstitutional. See Dumas

14 Indep. Sch. Dist., 361 U.S. at 385.

15 II. GEO Did Not Waive Intergovernmental Immunity by Contract.

16

In denying GEO’s motion for summary judgment, this Court raised the possibility

17 (without deciding the question) that language in the contract between ICE and GEO could be

18 construed as a waiver of intergovernmental immunity. Order Den. Def.’s MSJ 8, ECF No. 162.
19 20 It does not.

21

The Supreme Court has explained that, “[b]ecause of the fundamental importance of the

22 principles shielding federal . . . activities from regulation by the States, an authorization of state

23 regulation is found only when and to the extent there is ‘a clear congressional mandate,’ ‘specific

24 congressional action’ that makes this authorization of state regulation ‘clear and unambiguous.’”
25 Hancock v. Train, 426 U.S. 167, 167 (1976) (footnotes omitted); cf. Al-Haramain Islamic Found., 26
Inc. v. Obama, 705 F.3d 845, 850 (9th Cir. 2012) (“Contrary to the district court’s reliance on

STATEMENT OF INTEREST OF THE UNITED STATES-14 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 16 of 18

1 implied waiver, ‘[a] waiver of sovereign immunity cannot be implied but must be unequivocally 2 expressed.’”) (alteration in original).

3

In particular, the Court observed that one provision in the nearly 400-page contract

4 between ICE and GEO includes a nonexclusive list of 25 “constraints” that the contractor “is

5 expected to be knowledgeable of . . . and perform in accordance with the most current versions
6 of,” one of which is “[a]pplicable federal, state and local labor laws and codes.” GEO-ICE 7
Contract 48, ECF No. 19. That language, however, neither mentions the MWA explicitly nor 8 9 refers to “immunity” or “waiver” of immunity, and thus is not the sort of “clear and
10 unambiguous,” “unequivocal express[ion]” necessary to constitute a waiver of intergovernmental

11 immunity.

12

While these basic principles alone preclude a finding of waiver based on this provision, it

13 is also inappropriate to construe the phrase “applicable . . . laws” to include the MWA here. First,
14 similar language in contracts between ICE and its contractors have not been viewed as precluding
15 a finding of intergovernmental immunity in the past. See California, 921 F.3d at 885 (enjoining
16
17 state law “requiring examination of the circumstances surrounding the apprehension and transfer

18 of immigration detainees" on intergovernmental immunity grounds); id. at 886 n.10 (noting

19 contract governing immigration detention facility at issue “includes a provision requiring

20 “compl[iance] with all applicable ICE, federal, state and local laws, statutes, regulations, and
21 codes.”). Second, if the term “applicable” is to mean anything, it must at a minimum exclude 22
laws that are invalid as applied to the circumstances of the contract. Indeed, even without that 23 24 term, references to state or federal law in contracts are presumed to refer only to valid laws. See 25 DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 469, 193 L. Ed. 2d 365 (2015) (“Absent any indication
26 in the contract that this language is meant to refer to invalid state law, it presumably takes its

STATEMENT OF INTEREST OF THE UNITED STATES-15 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 17 of 18

1 ordinary meaning: valid state law.”). The MWA is invalid as applied to federal contractors on 2 intergovernmental immunity grounds. See supra Part I. The contract thus cannot be read to
3 include the MWA as among the “constraints,” and cannot be read to waive immunity to the MWA

4 or any other invalid or otherwise inapplicable law.

5

CONCLUSION

6

For the foregoing reasons, the United States urges the Court to find that the doctrine of

7 intergovernmental immunity bars the State of Washington from enforcing the MWA against
8

9 GEO.

10 DATED: August 20, 2019

Respectfully submitted,

11

JOSEPH H. HUNT

Assistant Attorney General

12

13

ETHAN P. DAVIS Principal Deputy Assistant Attorney General

14

CHRISTOPHER A. BATES

15

Senior Counsel to the Assistant Attorney General

16

ALEXANDER K. HAAS

17

Director

18

JACQUELINE COLEMAN SNEAD Assistant Branch Director

19

/s/ Christopher M. Lynch

20

CHRISTOPHER M. LYNCH

21

Trial Attorney U.S. Department of Justice

22

Civil Division, Federal Programs Branch 1100 L Street, NW

23

Washington, DC 20005

Tel: (202) 353-4537

24

Fax: (202) 616-8460

25

Email: christopher.m.lynch@usdoj.gov

26

Counsel for the United States

STATEMENT OF INTEREST OF THE UNITED STATES-16 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537

Case 3:17-cv-05769-RJB Document 185 Filed 08/22/19 Page 18 of 18

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CERTIFICATE OF SERVICE

2 I certify that on August 20, 2019, a copy of the foregoing document was electronically
3 filed with the Clerk of the Court using the CM/ECF system, which will send notification of such
4 filing to all counsel of record.
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6 DATED this 20th day of August, 2019.

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/s/ Christopher M. Lynch

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CHRISTOPHER M. LYNCH

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STATEMENT OF INTEREST OF THE UNITED STATES-17 State of Washington v. The Geo Group, Inc., No. 3:17-cv-05806-RJB

U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW
Washington, DC 20005 Tel: (202) 353-4537