UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON CHAO CHEN. Plaintiff, v. THE GEO GROUP, Defendant. and STATE OF WASHINGTON, Plaintiff, v. THE GEO GROUP, INC., Defendants. BEFORE THE HONORABLE ROBERT J. BRYAN UNITED STATES DISTRICT COURT JUDGE IN TACOMA HVVUHVVUHVEIUHVHUHVUUH August 2, 2018 No. Barry L. Fanning, RMR, CRR Official Court Reporter (206) 370?8507 1717 Pacific Ave Tacoma, WA 98402 APPEARANCES: For the Plaintiff: Andrew Free LAW OFFICE OF R. ANDREW FREE Adam Berger Jamal Whitehead SCHROETER GOLDMARK BENDER For the Defendants: Mark Emery NORTON ROSE FULBRIGHT Joan Mell BRANCHES LAW Barry L. Fanning, RMR, CRR Official Court Reporter (206) 370-8507 1717 Pacific Ave Tacoma, WA 98402 O928: 29: 29: :29: 29 :29: :29: :29: 29: :29 29 3D: :30: 30: 30 30: 30: :3014AM 5 new 6 2mm 7 28AM 8 40AM 9 4MM10 ?mmll 02AM l3 muml4 omnlS 10AM16 20AM 18 2mml9 2MM20 41AM21 0MM23 07AM24 1MM25 MS. MELL: Good morning, your Honor. THE COURT: This is further in Nwauzor versus GEO. No. 17-5769, and comes on for oral argument on three pending motions- Ms. Mell and Mr. Emery are here for the defendants. Let's see, Mr. Free, Mr. Whitehead, and Mr. Berger are here for plaintiffs. A couple of housekeeping matters first. Mr. Chen was dismissed as a plaintiff in the case. He is still on the record as a defendant in the counterclaim. Is that intentional or should he be dismissed from the case? MS. MELL: Your Honor, GEO's position THE COURT: Wait a minute. You need to speak right into the mic. MS. MELL: GEO's position is that Mr. Chen should remain as a counterdefendant. THE COURT: Okay. That's not the subject of today's issues, I just wanted to raise the issue because it wasn't clear to staff. There have been a couple of late matters filed. including a letter from ICE, and then the other one a declaration from a Tae Johnson, the last being filed just this morning. Have those things been served on counsel? Do you have those? MR. FREE: We do, your Honor. Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 09:mmaZ 2mm 1mml0 2mM11 mmle smml3 4mM14 5li5 omn16 32m420 num22 AMM24 THE COURT: I have read -- I had the week off last week, almost. I spent part of that week sitting on a deck out on Hood Canal reading stuff, including everything filed on these three motions. And then I have reviewed since then a good deal of what is in the files. That's a lot of reading. This case is way too paper heavy at this point. Be that as it may. I have read a lot. We have discussed it and worked on it in chambers, as well. I set this oral argument to give you the opportunity to tell me whatever you think is appropriate to say or to argue on the issues raised by these three motions. I would ask that you limit your comments to 20 minutes a side. In the order of filing, the plaintiffs" motions are older than the defendants' motion for class certification, so I assume you go first. MR. WHITEHEAD: Yes, your Honor. I am sorry. I?m unclear as to the order. THE COURT: You need to speak into the mic. You will break your back if you lean over. Just remain seated and tell me what's on your mind. MR. WHITEHEAD: I just want to make sure that I am clear as to the order. Are you asking for plaintiffs to argue their class certification motion? THE COURT: They made the motion first. They can Barry L. fanning, RMR, CRR - Official Court Reporter (253) 832-3833 1717 Pacific Ave Tacoma, WA 98402 09:3409mm nmmlo ??Mll 12 2li3 2%Ml4 239141416 muml7 mliB 4MM20 sum2l wam22 MAM24 argue -- They're all three motions. Anybody can argue within the time limits whatever you want to argue about those three motions. I am mindful that plaintiffs' motion and the defendants' motion regarding class certification are on the same subject. MR. WHITEHEAD: Then, your Honor, we will go first. MS. MELL: No. He said -- THE COURT: You won't go first, because they filed first, the motion to deny class certification. MR. WHITEHEAD: All right. Thank you, your Honor. MR. EMERY: Good morning, your Honor. My name is Mark Emery of the GEO Group. I would ask if the court would reserve five minutes for rebuttal. THE COURT: The time is yours. Keep track of it yourself. MR. EMERY: Your Honor, this is the first opportunity I have had to speak with you on these cases. I am counsel for the GEO Group in all of the detainee work cases that are currently pending right now, in Colorado, both the cases before your Honor, and in California, as well. So I am very aware of the importance of the issues that are sitting before the court today, and the fact that we put a lot of paper in front of you. Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 0923AM 5 QMM 6 7 32AM 8 33AM 9 amull mule 47m413 4mml4 wuml7 1mm19 1mm20 20AM221 mum22 24m123 29NMZZ4 3MM25 The issues I would like to cover are, first of all, the immunity issue, Yearsley immunity. I will probably spend most of my time on that. I would like to say a few things further about the issue of employment, the nature of the employment in question. I will say I have reviewed the past hearing transcripts and read very carefully your Honor?s questions that you put forward. And I also recognize the importance of the class certification issue, because you are the first court to consider whether a minimum wage claim would be certified for a class. The Menocal case is older, but that, in fact, was dismissed in that case. To begin with the Yearsley immunity: The federal government delegates authority to contractors to carry out a number of its different missions, including federal immigration detention. The Yearsley doctrine provides that when the government authorizes a contractor to take certain actions, it directs the contractor, and that authorization is valid, the contractor is entitled to immunity. What we are talking about here is the Voluntary Work Program. What is distinctive about this case is that the only claim is a minimum wage claim. The plaintiffs are essentially alleging that we are liable under the Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, WA 98402 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 36: 36: 36: 36: 36: 36: 36: 37: 37: 37: 37: 37: 3'7: 3'7: 37: 37: 37 38 38: 39AM 43AM 45AM 48AM 53AM 5813M 58AM 03AM 8 9 07mml0 1mmll ?mM12 2li4 29mml5 3li6 ?mml7 3mm18 4mM19 50mu20 5mm22 5mm23 Washington Minimum Wage Act for doing exactly what the government has told us to do. Now, I want to get into the details of that authorization and try to make it as clear think we have that authorization and are cloaked in immunity. One sort of very preliminary remark: When you read the nature of the pleadings in this case and the arguments, the plaintiffs have gone forward as if they are sort of exposing some deep secret that GEO has at the Northwest Detention Center, in the way it runs its program, the truth could not be further apart. What we do is straight up according to the policies that ICE put forward in the terms of our contract. We operate the Voluntary Work Program in broad daylight. I would like to begin with a brief discussion of those standards. If you don't mind, I will put a couple of things up. These are all materials that are in the record. So we begin with Section 5.8 of the Voluntary Work Program. This is from ICE's national standards. The first thing I would point to here is No. 1, where it outlines three different kinds of facilities. ICE operates three different kinds of facilities: An SPC. which ICE runs directly, and two different kinds of Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 09:3339: :39: 39: m?m 13AM 4MM10 5mmll oli3 1%Ml4 16AM 15 nmml6 2li7 2mM18 2MM19 3mM20 4mM24 4am25 contract facilities, CDFs and IGSA. The one that is at issue is a CDF. The same policies apply at all of these different facilities. Second, if you look down at 5 here, you see that this is listed as an expected outcome. Number one, "Detainees may have opportunities to work," and so on, as described here, within the constraints of what we are doing at a detention facility. Flipping over to Section again. this is mandatory language, "Detainees shall be provided the opportunity to participate in a Voluntary Work Program." Now we move to the relevant portions of the contract. This is from Page 82 of the contract. We see that one of the directives that ICE gives to GEO is to manage THE COURT: Can you erase those arrows that are not -- MR. EMERY: How do I do that? That is distracting. Thank you. And I thought it might be very quickly, just looking at the particular language of this case. So the first sentence, "Detainee labor shall be used in accordance with the detainee work plan developed by the contractor, and will adhere" -- THE COURT: Just a minute. You are getting ahead of me here. I don't know where you are looking at. Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, WA 98402 09 09: 09: 09: 09: 09: O9: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: 09: :3941: 41: 49AM 14AM 6 new 7 19AM 8 23AM 9 ?mml3 4MM16 4%Ml7 5mM19 57AM120 omle 22 m?m23 2MM25 Page 82. I have a copy of the contract here. All right. MR. EMERY: This is Page 82 of the contract. "Detainee labor shall be used in accordance with the detainee work plan developed by the contractor, and in accordance with the ICE on the Voluntary Work Program," which we just looked at. So we are not hiding anything here. ICE tells us that detainee labor shall be used. It shall be used in accordance with its standards. Continuing on, "The detainee work plan must be voluntary, and may include work or program arrangements for industrial, maintenance, custodial, service, or other jobs." What I would emphasize there is. we are not just talking about detainees cleaning their cells, we are talking about a wide range of things that ICE has directed us to have detainees do. Further, "The detainee work program shall not conflict with other requirements of the contract, and must comply with all applicable laws and regulations." We understand that one of the allegations that the plaintiffs make in this case is that this phrase somehow encompasses the minimum wage law -- Minimum Wage Act. This phrase needs to be read in the context of the contract itself. One really need look no further than the Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 0942: 42: :42: 42: 42 42 42: 42: 24AM QMM 2 30AM 48AM 9 5mml0 ?MMll mule DMM13 1MM14 l?Mls 1li6 d%Ml7 2mm19 32m420 3mM21 wwm23 4mM24 4mm25 10 very next sentence to understand why detainees aren't GEO's employees. The next paragraph begins, "Detainees will not be used to perform the responsibilities or duties of an employer" -- "of the contractor." So the contract especially distinguishes between what detainees do, which can be a number of different jobs at the facility, and what employees do. So moving on to the pay term, which I know is a key issue that is in dispute here. Going back to the I'm sure you are familiar with the language by now, Subsection of 5.8 states, "Compensation is at least $1 U.S. per day. The facility shall have an established system that ensures the detainees receive the pay owed them before being transferred or released." The authorization that ICE gives us is to pay at least $1 a day. We pay $1 a day. This is the exact same rate ICE pays at its own facility. This is the same rate that's paid in all of the facilities, unless there is some other arrangement made. You will notice, too, the second sentence here, "The facility shall have an established system that ensures detainees receive the pay owed them before being transferred or released." An important point that I hope has come out in the briefing, and should come out in the Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 092MM10 2mmll ??le 3%Ml3 4MM14 46Mql5 mwml6 wuml7 5mM18 num20 ongl mwm22 1MM23 1MM25 11 declarations filed today, and other declarations we filed, Mr. Kimble's in particular, is that GEO doesn't pay GEO doesn't decide what to pay detainees. THE COURT: They decided $1 a day in their worker's handbook. MR. EMERY: Your Honor, ICE decides that it?s $1 a day, and we administer that. THE COURT: Where does ICE say $1 a day rather than not less than $1 a day? MR. EMERY: We can look to another portion of the contract here. Looking at the highlighted portion, this is included in the same contract, "Detainee wages for the detainee work program, reimbursement for this line item via the actual cost of $1 per day per detainee. Contractor shall not exceed the amount shown without prior approval by the contracting officer." You can see that there are amounts put there. The rate -- THE COURT: That's what you get reimbursed for. How does that limit the pay? MR. EMERY: That?s the amount that ICE pays to detainees. GEO's role in the payment THE COURT: You pay more than that in some facilities, I understand. MR. EMERY: I will address that in a moment. I Barry L. Fanning, RMR, CRR - Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 0930AM 4 35AM 5 6 43AM 7 8 52AM 9 onmll wale :oaAM 13 149.1416 17AM17 3MM20 40AM21 4mM22 mam23 51AM24 5mM25 12 want to be clear what this provision says, which is that ICE pays $1 to detainees. The term "reimbursement rate" may be a little bit confusing. It is not a matter of ICE deciding to reimburse and GEO being able to pay whatever it wants. There is a rate that is set. There is an amount that can be paid per year. That is the total amount, $114,975. This is what ICE has said, you will pay this in a year." So essentially a dollar a day, 114,000 of them. This is providing 114,900 some daily opportunities -- THE COURT: What is to prevent you from deciding the rate is going to be $2 per day? MR. EMERY: Per this exact provision, we have to seek ICE's approval on that. THE COURT: Why? MR. EMERY: Because it says we shall not exceed the amount without the approval of the contracting officer. And there are clear -- THE COURT: Isn't that relative to reimbursement rather than what you pay detainees? MR. EMERY: I really encourage you to not get hung up on the idea of reimbursement. This is ICE paying. GEO does not pay the detainees. ICE pays the detainees. We facilitate the payment. THE COURT: I am curious about that. GEO set the Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, WA 98402 09: 09: 09: {194'7: 47: mum :wmaZ 2mm 3 mma4 awn 5 3mm 6 :37m4 7 4MM 8 44AM 9 5mM11 ??le 5mml3 02AM l4 ommlS numlB 2mm20 aum23 3mm24 3MM25 13 $1 a day in the employee handbook. I guess I fail to see why GEO can't pay more if they choose to out of the goodness of their heart. MR. EMERY: This is why, your Honor: GEO's handbook notes a dollar a day, but GEO doesn't set that rate. ICE sets that rate. For example, when detainees enter the facility they are given a detainee handbook. That detainee handbook, the one in 2014, when this class action began, said, "Pay will be $1 per day.? That is ICE telling every detainee in every facility, whether run by ICE or run by us, that pay will be $1 per day. This is the rate that ICE sets. As for why GEO wouldn't pay -- couldn't pay more, the contract says we shall not exceed that amount without ICE's approval. There are clear reasons why ICE would want that to happen. Your Honor, we are in a long-term contracting relationship with ICE. Every dollar that comes from ICE appropriations to detainees comes from 0.8. taxpayers. The government has an interest in knowing what's expended on this. It sets limits on it. It is not going to allow GEO to go pay higher rates. Now, you will find in the declaration that was filed this morning THE COURT: Wait a minute. Why would the Barry L. Fanning, RMR, CRR - Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 0950AM 4 5 5am 6 mum 7 07AM 8 9 1liO 16AM11 umle 3mml5 3mml6 5mM20 omm22 mwm23 ogm24 12AM25 14 government not allow you to pay a higher rate? They won't reimburse you for a higher rate, but why would they say you can't pay a higher rate? MR. EMERY: Look through this contract, the government controls every aspect of what we do at the facility. I mean, look at the line item -- You see the line item here on the top: "Estimating travel costs, including lodging and meals You will see it has the exact same language in there. You might use the same logic, "Oh, why would the government care how much we spend on lodging and meals?" But that exact same language is in there. The amount that is allocated for it under the contract shall not be exceeded without ICE's approval. ICE wants to control these costs. ICE has an interest in controlling these costs. You will see in the declaration that was filed this morning, which comes directly from ICE, in Paragraph 24, explains those provisions, "The NWC contract sets the quantity of $1 reimbursements at 114,975 per option year. GEO shall not exceed that quantity without prior approval by the contracting officer. This approval can be sought by GEO and would be memorialized through a bilateral contract modification." So the rate could be raised. If ICE decides that U.S. taxpayers want to pay $11 to detainees an hour, it Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, WA 98402 0919m4 34m?umll ?ule 5%Ml3 ommlS 1mm18 1nM19 ZMMZO 2MM21 3mm23 15 will pass through that amount to detainees, we'll make sure they get paid that amountICE that funds everything that happens at the detention facility. We are a contractor. That brings us back to the immunity point. We do all of this within the scope of our authorization. If we started paying a different amount, it actually would be going in a different direction from our authorization. It is in our interest to do what ICE directs us to do, which ultimately is in conformity with what Congress has directed. That's the second part of the Yearsley test, whether this authorization to run the VWP at the dollar per day rate is validly authorized. We have given you the text of this- The statute bears close care, 1855(d). It is an old statute, but it contains all of the language that is necessary to continue to direct -- or to infallibly confer authority on ICE to have us run the VWP at a dollar per day. It allocates money from here and for after. It says Congress may from time to time set a rate, which it has done in different years. It seems to be an item that was sort of stuck in the budget for a long time. It no longer does. Again, the declaration from ICE that we filed today, Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, WA 98402 0951: 51: :51: 51: 51: 51: 51: :52: 52: 1 4mm 2 46M4 3 4 5mm 5 54M4 6 0mm 7 10M4 8 nun 9 1liO 2mm11 2mM13 3mml4 3mM15 4nm17 5mm19 5mm20 5&m422 0MM24 1MM25 16 particularly Paragraph 13, explains that Congress set this rate, and that's what their rate continues to be. "Per the terms of the contract, as well as authority provided above, reimbursement for the Voluntary Work Program is $1 per day per detainee." The last point I want to make on the Yearsley immunity is, by asking whether GEO can pay more on its own -- this is really missing the point of what's happening here, that this is the administration of a government program. The government sets what terms the 0.8. taxpayers will pay for this. Paragraph 19 of the declaration filed today says it as clearly as can be said: has implemented and conforms to the current requires that detainees receive at least $1 per day for work performed in the That is exactly what we do. So we act within the government's authorization, and therefore we are entitled to immunity. If your Honor has no other questions on immunity, I will move to other issues. THE COURT: Okay. Thank you. MR. EMERY: A second point THE COURT: If you wanted to save some time -- Use your time as you choose, I guess. MR. EMERY: As I said, your Honor, I did want to Barry L. Fanning, RMR, CRR - Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, WA 98402 0923nd 3 4 5 dam 6 :wma7 8 9 25mm10 mell 3mm12 34m413 3li4 41m415 4li6 maml? 5li8 5mml9 swm20 09M423 1MM25 17 touch on some of the broader issues of employment class certification, but I imagine these are things I can address later- MR. FREE: Good morning, your Honor. My name is Andrew Free, and I am appearing on behalf of the plaintiffs in this case, along with my co-counsel Jamal Whitehead. And Adam Berger is here with us, as well. I am going to address Yearsley immunity, and Mr. Whitehead will address the class certification questions in this case that are before the court. I will pick up with the court's question, which I think is the critical one, and that is the difference between a reimbursement rate that is set by the federal government about how much ICE will pay GEO back for the work that is performed by detained immigrants, and a pay rate, which is what GEO is saying ICE has authorized it to set. So it is the difference between the floor to the ceiling. We have Docket No. 101-1, 101-2, and 101-3. a judicial admission that GEO can and does pay more than a dollar at other facilities that it operates with contracts with ICE. We've got examples of the invoices that GEO sends to ICE documenting the reimbursement rate that ICE will pay for, and the GEO billable rate that GEO pays when it needs to have a higher rate in order to get detainees Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, 98402 0955: 55: 55: :55: 55 55 55: 55: 24AM 31AM 38AM 43AM 9 5li3 0MM14 num17 l?MlS 19AM19 smM22 ?mm23 42AM 25 18 to do the jobs so that it can function. And we've got an example of a page from a GEO detainee manual at another one of its facilities. The reason we filed those things is because the statements that have been made in briefing about a uniform national policy of only paying detainees $1 a day are not factually accurate. Those statements are not true. There are dozens of facilities in this country, including at least three that I know of that are run by GEO, in which the contractor pays more, and the government approves it. And that's as it should be. Because according to the declaration submitted by ICE today, this morning, that was received by GEO last night at 4:45 -- 4:42, GEO is responsible for designing and implementing the performance-based requirements, including the work program. That is in the contract language, at Page 82, that my friend pointed out to the court. Throughout this declaration Mr. Johnson makes clear that the contractor is required for coming up with the work plan and determining how it is going to be run. I can point the court to the paragraphs. I have only had a little bit of time to review it. It says explicitly, "Performance-based contracts do not designate how a contractor is to perform the work, but rather establishes the expected outcomes and results that the Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 0956: 56: 5'7: 57: 57 57: 57: 57': 4mm 1 4mm 2 wm43 2%Ml0 ?mmll 4mml4 4MM16 5MM19 1MM23 1MM24 1mm25 19 government expects." That's Paragraph 8. Throughout this declaration, at Paragraph 9, at Paragraph 12, and Paragraph 13, the language is that of reimbursement. The answer to the question, "Why does it say a dollar as the reimbursement rate," is because it is the reimbursement rate. The defendant does not address the key other provisions in the contract which require GEO to ascertain on a rolling basis what its legal requirements are, its state/local legal requirements, and comply with the most stringent standard. In that respect, GEO is much more like the contractor in Campbell?Ewald versus Gomez, where the federal government said you have to make sure that you comply with the notification requirements before you attack somebody. It's like the contractor in Cunningham. I think Salim is instructive here. In Salim the Eastern District of Washington reviewed claims of derivative sovereign immunity by contractors. It was key that those contractors had a discretionary role in formulating the way that the program worked. That destroyed Yearsley prong 1, which was the authorization. That discretion, that contractual delegation of authority to determine how it works, which we see in this declaration from ICE, the first time we have seen it, the Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 0958: 58: 58: 20AM 24AM 26AM 30AM 33AM 37AM 41AM 45AM 49AM 9 5mml0 ??Mll 5MM12 0mml3 omml4 ommlS unml7 21AM 18 2mml9 2mw20 mmle 3mm22 3MM23 4MM24 4mM25 20 first time the court has seen it, that's the way GEO operates at the Northwest Detention Center. And it begs the questionthree bucks at the south Texas facility, and the LaSalle detention facility, why can't it pay 11 here? There is no legal impediment from Congress. That is black letter appropriations law. We cited it at Page 13 of our response. And appropriators will tell you that the law is, an appropriations bill is valid for the period of the appropriation- Now, there is an authorization for payment of detainees out of the lump sum allocation of money to DHS every year. That is an authorization, okay -- it's the authority that Congress has given ICE to pay. But the appropriation is two parts. The appropriation does not specify a wage rate, and it has not since 1978. I think the court grasped that in its prior rulings. In 1939 the Supreme Court said that the government does not become a conduit of its immunity in suits against its agents and instrumentalities merely because they do its work. That is the proposition that is before this court on GEO's motion to dismiss on Yearsley immunity. GEO is saying, "Because we have a contract with the government, ipso facto, they blessed everything we are Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, WA 98402 0959: :5959: :59: :59: 59: 59 00 GD: 00: :46mm 1 :mmaZ 5mm 3 MM44 5mm 5 0mm 6 mam 7 8 13M4 9 1mM10 mliZ 2MM13 3mml4 3mnl6 maul? 45M418 SMMZO ?wm22 m?M23 (BAM24 07m425 21 doing, they have authorized everything we are doing, and that's enough. We are immune." That is simply not the law. OIG Document 18?67 was released June 26th, 2017. That is the Department of Homeland Security's Office of Inspector General. It is titled, inspections and monitoring of detention facilities do not lead to sustained compliance or systemic improvements." The fact that the contract -- the fact that GEO continues to operate the facility does not equal ICE's authorization of everything it does there. So we think that GEO's motion fails at prong 1. And we have discussed why at prong 2, ICE does not have the authority to set a rate. And you will look in vain for something in this declaration or the prior one that was filed by Ms. Valerio -- We found out last night she's actually serving as a paid consultant for GEO, and submitted the declaration in violation, apparently, of the agency's Touhy regulations, and I fear in violation of 41 U.S.C. 2104(a)(3). You will look in vain for something that says, "Here is the delegation from Congress that says $1 a day this year." The last time that happened was in 1978. This is an improper forum. This motion to dismiss is an improper forum to resolve these issues. These are fact Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 1001: 01: 01: 01: 01: 01: 01: 01: :llAM 14AM 30AM 7 48AM13 5MM14 53AM 15 mli7 02AM18 ommlg 12AM 20 17AM21 1mM22 3MM25 22 questions. I would love to depose Mr. Johnson. I would love to depose Ms. Valerio. We have not had an opportunity to do that yet. Ms. Valerio was subpoenaed, and her testimony was replaced by some other ICE officials. It was scheduled for Washington, D.C. We later found out that the government was going to move to quash those subpoenas. GEO issued them, and ICE was going to move to quash them. We have not had an opportunity to test these propositions through documented fact discovery. And we should. If you look at the cases on which GEO relies, they are resolved on summary judgment, not a motion to dismiss pre?depositions, pre?paper discovery. An instructive case that we discovered after reading GEO's reply is Anchorage versus Integrated Concepts and Research, Inc. That is Judge Gleason in the District of Alaska. THE COURT: I'm sorry, Judge who? MR. FREE: Judge Gleason. 1 F. Supp. 3d 1001. And we point the court to Page 1012, particularly to Note 77. Because this case is about derivative sovereign immunity, we think that the court should at least consider what courts have said about the nature of this defense, is it a jurisdictional defense, like actual sovereign Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 1037nd 2 amaE 4mm 4 47nd 5 6 54M4 7 OMM 8 04m4 9 ommlO w?mll 1mM12 1mM13 2mM15 2li6 awml? 3nM18 35AM l9 BMMZO amm21 MEMZZ 4MM24 56M425 23 immunity, the immunity of the sovereign, or is it a merits defense? Is it a defense to liability? At Note 77 of this decision Judge Gleason analyzes that, and concludes it is the latter, it is a defense to liability, regardless of the nomenclature courts have used. Judge Walton in the District of Columbia, In Re Fort Totten, 895 F.Supp. 2d 48 at Page 78, also discusses how this is not actually a jurisdictional defense; it is actually a liability defense. And if you read Justice Ginsburg's opinion in Campbell-Ewald, the manner in which she disposes of the question, which is to take all inferences in a light most favored to the plaintiff, and avoid summary disposition, that is a summary judgment standard. She cites Matsushiba, I believe. Again, that would not be the case if it were jurisdictional. The plaintiff would have the burden of proving jurisdiction, as it does in a 12(b)(l) factual attack. So we do not believe this is the proper forum to resolve these questions. And with that, your Honor, unless you have any specific questions about Yearsley, I am going to hand it over to Mr. Whitehead to discuss the class certification. THE COURT: I might ask you, and the defense may wish to respond to this if I can find my note. I Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Taccma, WA 98402 10:0405: 05: :24mq 0%Mll 2mml3 maml4 3li6 4MM18 4MM19 4MM20 5Mm22 omm24 24 wondered about this in regard to the elements to prove Yearsley immunity. The first thing is that the government authorized the contractor's actions. Does that mean in this setting that the government has to, for Yearsley to apply, authorize a dollar a day, or does it mean the government has to authorize the contractor to ignore the state law? MR. FREE: I think it is the latter, your Honor. We would point the court to Meyers versus the United States. That is a Ninth Circuit case from 1963. The cite there is 323 F.2d 580, and it is at Page 583. The Ninth Circuit looked at this authority prong and interpreted it as, "in conformity with the terms of said contract." So, in other words, it said the contractor is immune so long as it is in conformity with the terms of the contract. And once you fall out of conformity, you have exceeded the authorization of the government to pay. What we would contend in this case is that GEO is out of conformity with the term of the contract that requires it to continuously ascertain all applicable state and local laws; and that by not applying the most stringent law in the event of a conflict, specifically by not paying minimum wage, it is acting outside the federal government's authorization. The court will look in vain for any paragraph in the Barry L. Fanning, RMR, ORR - Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, WA 98402 10:06ommll umwl3 anl4 1mM15 2mm16 maml7 3MM18 3MM19 4MM21 5mM23 5mm24 5mm25 25 Johnson declaration filed this morning saying that ICE has authorized GEO to violate Washington's Minimum Wage Act. It is not there. If the court has no further questions, we will address the class cert. MR. WHITEHEAD: Good morning, your Honor. GEO relies upon civil immigration detainees participating in the Voluntary Work Program to operate the Northwest Detention Center on the Tideflats. As the court knows, these VWP workers are only compensated at the rate of $1 a day. Looking at the economic realities of the situation, we argue that an employment relationship exists between GEO and the detainee workers at the Northwest Detention Center, and, further, that GEO violates the Washington Minimum Wage Act by paying these workers sub-minimum wages. GEO obviously disagrees with our position. But when you look at the overarching questions in this case, they are common and predominate over any individualized questions. That being the case, the class vehicle is the best way, the superior means, by which to resolve the rights of hundreds of people, if not more, in one fell swoop. So for that reason, we look to certify a class. Rather than hustling through every element of Rule 23(a) or I would like to quickly, in the Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 1008: 08: :0837mu10 4mM12 mumlB 4MM14 51M415 5li6 waml? omml9 cam20 OMMZI dum22 26 limited time that I have, address the remaining points, the first of which is that GEO practically admits that common questions abound and predominate. We have heard in its first motion to dismiss, in the context of the class certification motions, that there is a threshold question, the question of whether or not work authorization somehow precludes class certification if there is a preemption issue. This is a rehash of GEO's first motion to dismiss. In other words, they are arguing the threshold question is, could an employment relationship exist between the parties? The court has already answered this question in the context of the motion to dismiss, denying that motion. And since then, the Central District of California has revisited the issue and analyzed and found there is no IRCA preemption. Setting aside the fact that GEO is wrong on the law, in the context of class certification, it simply does not matter in the sense that there is an overarching question that is common to the class that is capable of a common answer. In that way the threshold question they have identified supports and undergirds our contention that there is a common overarching question that is capable of a common answer in this case. Not only that, once you get past what they have Barry L. Fanning, RMR, CRR - Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 1008: 08: :08: 08: 08 08 :0928AM 3 31AM 4 3mm 5 39AM 6 mum 7 43AM 8 4mm 9 5mmll 12 wamlB 01AM l4 MAN 15 armlB 1mm19 20AM20 an23 2MM24 3MM25 27 identified as the threshold question of, could an employment relationship exist, you then delve into whether or not an employment relationship did in fact exist. The Washington State Supreme Court has devised an economic reality test, which is a multifactorial test that looks at the nature of the relationship between the parties. So when you are looking at the nature of the relationship, you are asking yourself questions, for example, who, when, where, what, and why of GEO's authority. Who could participate in the volunteer work program? Could they direct where and when they worked? Did they control the means of the production? In this instance, did they give them training? Did they give them equipment? Did they set the pay rate of a dollar a day? Does GEO rely upon the labor of the detainee workers to support its operations? These are overarching questions that are capable of a common answer. Now, GEO will point to the granular aspects of the daily tasks. They will say, "Well, the work that was performed by the person that cleaned the kitchen is different than the work that was performed by the person that cleaned the bathroom." They will point to security assessments: "Well, this person is high risk, and therefore they are confined to their pod," versus, "This person is deemed as a lower Barry L. Fanning, RMR, CRR - Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, WA 98402 1010: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: D9: 09: 09: :09: :09: 09 09 09: :0910: 10: 10: 34AM 1 37AM 2 33AM 3 40AM 4 46AM 5 6 7 55AM 8 BEAM 9 01AMIL0 17AM213 21AM114 24AM 15 32hm:18 35mm].9 37AM120 46AM123 49AMIZ4 52AM225 28 security risk and has more free-ranging ability throughout the facility." At the end of the day, those are questions that do not impact the scope of GEO's authority or the scope of the economic relationship between the parties. I mean, the relationship, however broad, however narrow, would be the same, irrespective of the tasks that are being performed on a daily basis. The second point that I want to look at is the fact that individual questions about damages do not predominate over the common questions regarding liability. The cases are legion. We cite them in our brief. Courts find in a wage-and-hour context when there is a common scheme, and the fact that there is a common question capable of a common answer, the fact that there are individualized damage inquiries does not somehow defeat class certification. That is almost always going to be the case in a wage-and?hour case, in that there are going to be different damages apportioned to different class members. The thing about a wage-and-hour case, of course, as the court well knows, those damages lend themselves to formulaic calculations. I mean, it is simply a matter of math in terms of figuring out what those damages are. So it does not necessarily defeat the overarching common question with respect to liability. Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 10Z?Mll amml3 4MM16 wumlB 5mul9 5mM20 meZZ wmm23 0mm25 29 Not only that, as we point out in our briefing, representative data may be used, sampling may be used to help in the quest to calculate the actual damages. The Supreme Court has endorsed this approach. In looking at Tyson Food v. Bouaphakeo, there is the notion that we can look to aggregate damages, meaning GEO's total liability, as a matter of math in figuring out what the total liability would be and then figuring out the proportionate share of damages for individual class members. The last point that I would like to address is the adequacy of the plaintiff, Fernando Aguirre?Urbina. There has been a late -- I think it was titled as a supplemental authority, that was submitted to the court, regarding his medical records, and arguing from those records that he is somehow an inadequate class representative. I think, first and foremost, GEO has waived these sort of arguments in that way, in that they did not address it in their motion to deny class certification, and did not address it squarely in their opposition to our motion to certify. So I think waiver has occurred in that way. Even if the court were to consider their arguments. what was true in the past of Mr. Aguirre-Urbina is certainly not true today. We submitted in somewhat of, Barry L. Fanning, RMR, CRR - Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, WA 98402 1013: :13: 13: 13: 13 13: 13: 10AM nun 4%Mll 12 5li4 5mM16 oli9 11AM20 l?MZl 20AM 22 mnm23 2mM24 3MM25 30 perhaps, an unusual step of giving the court the entire transcript, as well as the video, so that you could see for yourself that he withstood seven hours of very pointed questions, at times very disdainful questioning, and performed admirably. The question of adequacy is one as to whether or not there is a conflict between the proposed class rep and the class, and whether or not that person will help in the prosecution of the case. Mr. Aguirre-Urbina has done that ably in this matter. Even to the extent -- assuming the court were to find somehow that he was inadequate as a class representative, well, he is one of two proposed class representatives. So that issue alone would not preclude class certification in this case. In conclusion, what we are dealing with here, and you see this in the performance-based national detention standards, the contracts, and, frankly, from the argument this morning, that we are dealing with a common scheme. We are dealing with a common program as it relates to the VWP workers which GEO administrates. In that way, the class vehicle is well suited to resolve the rights of these folks. So in that way, we urge the court to certify a class. It would not be the first court to do so, in the sense that in the District of Colorado there was a class certified of detainee workers Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 10?wmlo 2%Mll ?uml3 ??ml4 45M415 wwml6 ?uml7 cuml9 anZZ umm23 1MM24 2MM25 31 which was recently upheld by the Tenth Circuit. Unless there are any further questions from the court, I would conclude my remarks. THE COURT: I may have some. Let's go ahead. Defense counsel reserved some time. Excuse me. Did you get the citations that counsel referred to as we went along? Nathan Nanfelt is one of my law clerks. He is the brains of the operation here. I sometimes wonder if lawyers realize how much they are arguing to law clerks as well as the judge. Anyway, go ahead. MR. EMERY: Your Honor, there is a daunting number of things to respond to here, but I think the first thing just one thing to revisit on Yearsley immunity is, again, to emphasize ICE pays the same amount at every facility. There is no reason to treat us different as a contractor- ICE funds the Voluntary Work Program because it is its program. It is a national program. If you read the declaration filed today, there is an emphasis throughout that they want uniformity. All of the paper that is put in this case -- They come in and produce some, you know, blips here and there, something from other cases. Let's talk about this case. They have alleged we pay $1 a day. That's what ICE tells us to do. That's what we are authorized to do. The second thing is to turn to the issue of Barry L. Fanning, RMR, CRR - Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 10:15:16nma3 ?Md4 42Md 5 4mm 6 :mma7 5mm 8 57M4 9 ommlO O?Mll mmle umml3 2mM15 2li6 2mM17 3MM19 4MM22 4mm24 wamZS 32 employment. This is an important moment, because if the court allows these claims to go forward, and even considers them for class certification, it is turning its back on a considerable amount of agency experience and history. ICE has been operating detention facilities through contractors for decades. No state agency -- nobody has ever come forward to GEO and suggested that it should be paying state-level minimum wages when Congress has expressly said what the rate is for payment, and ICE controls the money that goes to detainees. I would point you in particular to the FLSA opinions, that have gone back for decades, that draw a very simple distinction: Are detainees entitled to minimum wage under the No. Why? Because they are not employees. They work for purposes of institutional maintenance. They are not out seeking a wage to help support themselves. When the detainees are in a facility they are supported, they have clothing, they have healthcare, they have food. They are not the particular wage earner, and they are not the recipient of the largess of state minimum wage laws. There is nothing in our contract that suggests that ICE ever intended us to subject -- to have our detention facilities and the VWPs run by the various different state laws where ICE has facilities. Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 1018: :18: 18: 18: 18 18: 18: 55mm 1 :57m4 2 59nd :21m4 8 24m4 9 2MM10 29m411 acle :37m413 41m4l4 49m416 5MM17 :57m418 0MM19 1MM22 nmm23 2mm24 2mm25 33 This is the same rationale that the THE COURT: If that's the case, why is that provision in the contract regarding state and local laws? MR. EMERY: Because there are a number of state laws that we are required to -- For example, there are different federal laws. The VWP complies with OSHA, with state labor laws. That has been expressed. There is definitely room for that. It doesn't mean that no state laws are relevant. But on an issue on which Congress has expressly spoken, expressly set a rate, now and hereafter there is no -- there is simply no plausible understanding that ICE intended for state minimum wage laws everywhere it has facilities to set what that rate is. I mean, if ICE had intended state minimum wages, which are at least 11, $12 an hour, how does that make sense with the at least $1 per day provision? Why would ICE have that provision, use that language, if it intended the state minimum wage laws would work at any given state? There has been talk in the briefing and today about the economic reality test. Your Honor, there is only one economic reality that matters here. If Mr. Nwauzor, Mr. Aguirre, Mr. Chen, and likely just about anybody in their class, had come to GEO while they were detained and asked to become a GEO employee, they would have said, "No Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, WA 98402 10:19:?mu3 4mm 4 wmaS 4mm 6 :wma7 5mm 8 OMM 9 01mmlO omn12 07m413 mnml4 09mml5 1mM16 l?M17 ammlB 2mml9 25mu20 aule 3mm22 3MM24 4mm25 34 chance to do so." Why? Because they were forbidden by federal law from doing so by their detention status. They either had criminal convictions, which would have prohibited -- THE COURT: What if GEO is in fact, under an economic reality test, employing these people? The law is against the employer from employing people that are not employable. It doesn't prevent any illegal immigrant from working. MR. EMERY: I understand your Honor's position on that. What really is the reality -- THE COURT: It is not my position. It is a question. MR. EMERY: Okay. I understand the question. What is the reality of saying that we treated them like employees? We absolutely did not treat them as employees. Do you know what our employees need to do to pass a background check? Do you know the expectations of them to be able to Our employees, we can tell them what to do, when to show up for work, what to do. Think of the typical detainee. ICE tells them when to come to the facility, ICE says when they leave, ICE says what classification level they can work at, which drastically restricts the jobs they work. ICE even decides on a shift-by-shift basis who can actually work in Barry L. fanning, RMR, CRR - Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, WA 98402 10:20: :20: 20: 20 20: 20: 20: 20: :20 :20 :20 :20 :20: :20 :20 :21: 21: 44M4 1 :45m4 1liO 2mmll 3MM14 37m415 3%Ml6 ?mm22 5mm23 omM24 omM25 35 the program. This is going back to Page 82 of the contract, where we were before. I would direct you to the very bottom paragraph on this page. It says, "It will be the sole responsibility of ICE to determine whether a detainee will be allowed to perform on voluntary work details and at what classification level." "The sole responsibility of Mr- Kimble's declaration explains how this process works. There are kites that are put out, GEO puts together a list which is approved by ICE. ICE can take any single person off this list they want. How on earth is it the economic reality that GEO is the employer of any of these detainees? They are in federal immigration detention. They are in the federal government?s custody. The federal government says what is done to them. The very last thing, quickly, is class certification. Your Honor, the main thing I want to say here is we know so little about these claims. We know so little about them. You saw them rattle off, "Oh, we are going to do a model of this, we are going to do a model of that."? The first gauntlet that any class member would have to do is to show that they are authorized to work for us when they are at THE COURT: Wait a minute. Wait a minute. Why Barry L. Fanning, RMR, CRR - Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 1021: 21: :21: :21:22: :22: :22 :22: :22: :23 05AM 08AM 12AM 15AM 19AM 21AM 25AM 31AM 9 3mm10 S?Mll ?li3 m5m414 ??MdlB a2mal9 31AM20 3mM21 mom22 36 do they have to show that they are authorized to work when in fact they are working? MR. EMERY: They are not. They are voluntarily participating in the Voluntary Work Program. GEO knows who works for them, because they pass all of our employment verification tests. None of these detainees did. They performed work as the government said that they could volunteer to do for a pay rate the government said they could do. If there is going to be a class, it is going to have to be a class of people who actually were authorized to be our employees. None of these folks were. None of the named plaintiffs so far have met that. And they haven?t pointed to a single class member -- THE COURT: There are examples all over the country of illegal immigrants who get work. And because they are illegal, their employers pay them less than minimum wage, because they think they can't complain. There are instances where -- we see cases where people in fact come into the country and are effectively enslaved and required to work without pay. The Minimum Wage Act is designed to protect the workers from being abused by employers. Employers are the ones that are restricted from hiring people that aren't qualified to work in the country. But the workers are not so limited. Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, WA 98402 :23: 23: 23: :23: :23: :23: :23 :23 23: 23: :23: :24 :24 24: 24: 24: :24: :24 :24: :24: 24: 24: 24 24: :24: 1mm 1 1?54M410 5mwll mmle muml3 0mM14 08Mdl5 l?Ml6 1nml7 2MM19 27M420 3nm22 nmm23 4MM25 37 I guess what I'm leading up to is this: Isn't this all a jury question? You guys asked for a jury, to my great relief. Isn't it a jury question as to what the employment relationship, if any, was, and how these various contract provisions and legal provisions should be applied? MR. EMERY: It absolutely is not- Your Honor, I appreciate the concern. I recognize that that is the objective of a lot of state minimum wage laws. The folks in the unfortunate position you are talking about are not supported with food, and clothing, and healthcare, and medical care at U.S. taxpayer expense. THE COURT: Some of them get various benefits from their employers. MR. EMERY: They may. The Salas case is actually quite a good case on this point, your Honor. Salas says you may have to pay back -- an employer might have to pay backpay if they sort of willfully ignore the detention status cf the detainee and employ them. Once it is determined that they are unlawfully working, there is no more obligation to pay backpay. We know from the day they step into our facility they are not employees. There is no work authorization, and therefore no state minimum wage laws are going to apply. We are in a different universe here. The detainees Barry L. Fanning, RMR, CRR - Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, WA 98402 10:25: :25: :25: :25: :25 :25: :25: :26: :26: :27 27 :27: :27: :27: :27 :27 27: 49AM :mmaS IMM 9 17AM 10 1%Mll sliB 3mml4 3li6 5li7 1mm20 amm23 num24 3mM25 38 aren't here because they are being exploited. The detainees are here because they are in the federal government's custody. If that's what the root issue is, there is a complaint about their custody itself, and the fact that they are in a federal detention facility, this is entirely the wrong case. That's an action that should be brought directly against the U.S. government, and not its federal contractor. It is another reason why Yearsley applies to us. THE COURT: Thank you. Let me see if I have any other questions I want to put to you. I had a list of things. MR. EMERY: Should I sit down or stay up? THE COURT: Suit yourself, as long as you speak into the mic when you talk to me. I guess the only question I have is the process for authoring policies listed in the detainee handbook. Can somebody fill me in on that, what the process is? MS. HELL: Your Honor, the position of GEO is that the oversight on the standards by Congress requiring routine updates as to its implementation of standards have set a Congressional level of authority to enforce those regulations. THE COURT: I think you misunderstand my question. I am talking about the process for preparing Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 1027: 27: 27: :27: 27 27: 28: :28: 28: 28 28 :28: 28: 28: :28 28 28: 28: :28: :28: 28 29: :29: 29: 1 4am 2 46Md 3 4 52mm 5 ?ow 6 sama 7 0mm 8 0mm 9 ammll amm12 25mml3 3MM15 ?mml6 A?ml7 SMMZO 57mm21 5mm22 02m423 1mM25 39 the detainee handbook and the policies that are in the handbook. MS. MELL: From GEO's perspective? THE COURT: No. No. Not from somebody's perspective. What is the process? MS. MELL: I am asking whether you are inquiring of the standards or GEO's standards? THE COURT: You see, let me explain what I am talking about. We have all this reference to not less than a dollar a day, and then in the handbook it says $1 a day. It is not not less than. It says $1 a day is what they will be paid. My question is, what is the process to get from the standards and the contract over to the policy as stated in the handbook? MS. MELL: Your Honor, there are two separate handbooks. I just want to be clear. When the detainee comes into the facility, they get the ICE national detention standard detainee handbook. That says for those detainees who have been participating within the requisite period that we are talking about here shall receive $1 a day. GEO, the detention facility, promulgates a second detainee handbook that mirrors what is in the ICE handbook. They just duplicate it. And then those are both available in dual languages and disseminated to the Barry L. Fanning, RMR, CRR - Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: :29: :29 :29: :29: :29: :29: :29 :29 :29: :2930: 30: 17AM 1 arm 2 23AM 3 4 3mm 5 43m4 6 :48m4 7 5mm 8 55AM 9 swmlO olil oliZ 13 1MM15 2mml6 2li7 ?umlB 3an9 4mm22 4o detainees at the facility. So in terms of how it happens, GEO relies on the detainee handbook that is provided by ICE. MR. FREE: Paragraph 8 of the ICE declaration filed this morning essentially says, on Page 3 of the declaration, that the performance-based contracts, like the one at Tideflats, don't designate how a contractor performs the work, from the facility, but rather establishes the expected outcomes and the results. The national detainee handbook has never gone through any sort of Congressional oversight. It is not incorporated into the contract. The is incorporated into the contract, that says at least $1 a day. The national detainee handbook, to the extent it says "shall," is in conflict. But ICE says it's GEO. If you look at the contract, the contractor the very first line of the Voluntary Work Program section, the contractor is to develop the work plan. MS. HELL: Your Honor, I just want to point out on this specific issue that ICE actually approves the Northwest Detention Center's version of its detainee handbook. It is reflected on the exhibit itself. THE COURT: Okay. Thank you. As I indicated, we have already done a lot of work on this. With all these issues raised, as I indicated, it is partly a question of Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave - Tacoma, WA 98402 10: 10: 10: 10: :31:3132: 32: :32: 32: 32: 32 33: 04AM 2 3 24AM 4 27M 5 34AM 6 7 8 53AM 9 57AM 10 02AM11 08AM 12 20AM 14 26AM 15 26AM16 28AM17 :31m18 3391419 37AM20 392.9421 MM: 22 51AM23 01AM 25 41 what is the law that I should apply now and what are jury questions that come later. That's part of the analysis we have to deal with, I think, in coming to conclusions on these motions. I also wanted to say I am aware on the motion to deny -- on the motion to dismiss the amended complaint there are some issues that are revisited from the original motion to dismiss. We have revisited those, even though there is a question raised about whether they are properly before the court. I felt I ought to look at them anew anyway, which we have done. So that will be reflected in the order we will issue. Thank you very much. A lot of the same old, same old stuff going on here. We will try and do an appropriate analysis. Do you have something further, Ms. Mell? MS. MELL: Your Honor, I just was concerned that there was at least some oral presentation by the opposition as to the Tracey Valerio declaration. And it is GEO's position that ICE has not instructed us to withdraw the declaration, that the Touhy issue in play is the application of 5 CFR 2635.805, which says that experts like Tracey Valerio can testify as long as they are not testifying in a case where it is a party. To the extent we need to brief it -- Barry L. Fanning, RMR, CRR Official Court Reporter (253) 832-3833 1717 Pacific Ave Tacoma, WA 98402 :33: 33: 33: :33: 33: :33: 33: 33: 33: 33: :33: 01AM 083M 12AM 16AM 233M 30AM 34AM 35AM 38AM 47AM 49AM THE COURT: Ms. Hell, I read her declaration, and saw who she is and where she came from, and the contents of her declaration. I didn't think it made a whole lot of difference in anything. The same thing is true of the later ICE declaration, it just didn't add a lot to the issues I have to decide. MS. MELL: Thank you, your Honor. THE COURT: What you do about it, whose fault that was, who turned ICE on about that is not my concern. MS. MELL: Thank you, your Honor. THE COURT: Okay. Thank you. (Proceedings adjourned.) Barry L. Fanning, RMR, CRR Official Court Reporter (253) 882-3833 1717 Pacific Ave Tacoma, WA 98402 Barry Fanning, Official Court Reporter for the United States District Court, Western District of Washington, certify that the foregoing is a true and correct transcript from the record of proceedings in the above-entitled matter. ls/ Barry Fanning Barry Fanning, Court Reporter Barry L. Fanning, RMR, CRR - Official Court Reporter Suite 17205 - 700 Stewart St. Seattle, WA 98101