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6 UNITED STATES DISTRICT COURT AT TACOMA 8 9 UGOCHUKWU GOODLUCK CASE NO. C17-5769RJB NWAUZOR, FERNANDO AGUIRRE- 10 URBINA, individually and on behalf of all ORDER ON MOTION FOR those similarly situated, RECONSIDERATION OF ORDER Plaintiffs, SUMMARY JUDGMENT 12 v. 14 Defendant. 15 16 This matter comes before the Court on Defendant The GEO Group, Inc.’s Motion for 17 Reconsideration of Order on Cross Motions for Summary Judgment (Dkt. 280). Dkt. 288. The 18 Court has considered the pleadings filed regarding the motion, the remaining file and the file in 19 Washington v. GEO Grp., Inc., Western District of Washington Case No. 17-5806 RJB, which is 20 joined with this case for liability purposes. 21 For the reasons provided below, the motion for reconsideration (Dkt. 288) should be 22 denied. 23 24 2 The facts and procedural history are in the Order on Cross Motions for Summary 3 Judgment (“Prior Order”) (Dkt. 280) and are adopted here, by reference. In that Prior Order, 4 GEO’s Motion for Summary Judgment was denied. Dkt. 280. 5 GEO now files a motion for reconsideration of that Prior Order, asserting that (a) the
6 Court disregarded the evidence in the record regarding GEO’s defense to the Plaintiffs’ 7 Washington Minimum Wage Act (“MWA”) claim, (b) it erred in adjudicating GEO’s direct 8 regulation intergovernmental immunity defense, (c) the Court did not properly handle GEO’s 9 defense of intergovernmental immunity premised on discrimination, and (d) it did not address all 10 of its derivative sovereign immunity arguments. Dkt. 288. 12 Western District of Washington Local Rule (7)(h)(1) provides, “[m]otions for 13 reconsideration are disfavored. The court will ordinarily deny such motions in the absence of a 14 showing of manifest error in the prior ruling or a showing of new facts or legal authority which
15 could not have been brought to its attention earlier with reasonable diligence.”
17 GEO moves the Court to reconsider the decision to deny GEO’s motion for summary 18 judgment on its defense that the MWA’s coverage exemption for “[a]ny individual whose duties 19 require that he or she reside or sleep at the place of his or her employment . . .” applies. Dkt. 288. 20 GEO maintains that the Court overlooked the evidence in the record showing that to participate 21 in the VWP, a person must be a detainee. Id. 22 GEO’s motion for reconsideration on this issue should be denied. It has failed to “show 23 manifest error in the prior ruling or a showing of new facts or legal authority which could not 24 1 have been brought to [the Court’s] attention earlier with reasonable diligence.” The Prior Order 2 considered GEO’s assertions and proffered evidence. That evidence failed to address the critical 3 question. As stated in the Order, 4 GEO fails to acknowledge the key phrase in the exclusion - it applies to individuals “who’s duties require that he or she reside or sleep at the place of his 5 or her employment.” GEO fails to point to any facts which support the notion that the detainees’ duties require that they sleep or reside at the NWDC. All parties 6 agree that the detainees are in the custody of ICE and are not permitted to leave the facility until the detainees are ordered released or deported. It is their 7 detention which leads to the requirement that they “reside or sleep” at the NWDC. Their participation in the program does not lead to the requirement that they 8 “reside or sleep” at the NWDC.
9 Dkt. 280 (emphasis added). The Prior Order should be affirmed. 10 B. GEO’S DEFENSE OF INTERGOVERNMENTAL IMMUNITY – DIRECT REGULATION 11 GEO moves for reconsideration of the decision denying its motion for summary 12 judgment on intergovernmental immunity based on direct regulation of the federal government 13 by the state. Dkt. 288. GEO argues that the Court erred in two statements. GEO points to the 14 following: 15 [The Order] stated that “[t]here are, at least, material issues of fact on whether 16 GEO should be considered ‘the federal government itself’ for immunity purposes,” and it appears to have done so out of concern that “GEO’s claim 17 would mean that no State or local laws would apply to it.”
18 Dkt. 288 (quoting Dkt. 280). GEO argues that under the “direct regulation doctrine” a federal 19 contractor is treated as the federal government as a matter of law. Dkt. 288. 20 GEO’s motion for reconsideration on this issue should be denied. It has failed to show 21 that there was a “manifest error” in the Prior Order or “new facts or legal authority which could 22 not have been brought to [the Court’s] attention earlier with reasonable diligence.” The 23 statements to which GEO refers should be considered in context of the entire paragraph: 24 1 GEO’s assertion that, because it runs a federal immigration detention center it should be “treated the same as the federal government itself for purposes of 2 intergovernmental immunity,” is unpersuasive. Dkt. 227, at 17, n.6 (citing [United States v.] California, 921 F.3d [865,] 882 n.7 [(9th Cir 2019)]). GEO 3 attempts to extend the reach of the doctrine too far. The case that GEO cites for that provision, California, did not make such a sweeping ruling. There, the Ninth 4 Circuit found that some of the California laws relating to the immigration facility at issue there did not violate the doctrine. California, at 884 (holding that only 5 those provisions of the California law that “impose an additional economic burden exclusively on the federal government are invalid under the doctrine of 6 intergovernmental immunity”). Further, GEO’s claim would mean that no State or local laws would apply to it, contrary to the provisions in its contract with ICE. 7 There are, at least, material issues of fact on whether GEO should be considered “the federal government itself” for immunity purposes. 8 Dkt. 280. As stated in the Prior Order, GEO has failed to show that application of the MWA 9 here “directly interferes with the functions of the federal government.” Boeing Co. v. 10 Movassaghi, 768 F.3d 832, 840 (9th Cir. 2014). It has not demonstrated that the private 11 Plaintiffs’ enforcement of the MWA violates the doctrine of intergovernmental immunity 12 because GEO has not shown that it directly interferes with the functions of the federal 13 government. The Prior Order was not in error and should be affirmed. 14 C. GEO’S DEFENSE OF INTERGOVERNMENTAL IMMUNITY –
16 GEO moves for reconsideration of the portion of the Order denying its motion for 17 summary judgment based on intergovernmental immunity premised on discrimination. Dkt. 288. 18 “A state or local law discriminates against the federal government if it treats someone else better 19 than it treats the government.” Boeing Co. v. Movassaghi, 768 F.3d 832, 842 (9th Cir. 2014). 20 The Ninth Circuit recently noted that: 21 The doctrine [of intergovernmental immunity] has been invoked . . . “to prevent a state from imposing more onerous clean-up standards on a federal hazardous 22 waste site than a non-federal project, . . . to preclude cities from banning only the U.S. military and its agents from recruiting minors, . . . and to foreclose a state 23 from taxing the lessees of federal property while exempting from the tax lessees 24 1 of state property . . . Those cases dealt with laws that directly or indirectly affected the operation of a federal program or contract. 2 United States v. California, 921 F.3d 865, 880 (9th Cir. 2019)(citing Boeing, at 842-43; United 3 States v. City of Arcata, 629 F.3d 986, 988, 990–92 (9th Cir.
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6 UNITED STATES DISTRICT COURT AT TACOMA 8 9 UGOCHUKWU GOODLUCK CASE NO. C17-5769RJB NWAUZOR, FERNANDO AGUIRRE- 10 URBINA, individually and on behalf of all ORDER ON MOTION FOR those similarly situated, RECONSIDERATION OF ORDER Plaintiffs, SUMMARY JUDGMENT 12 v. 14 Defendant. 15 16 This matter comes before the Court on Defendant The GEO Group, Inc.’s Motion for 17 Reconsideration of Order on Cross Motions for Summary Judgment (Dkt. 280). Dkt. 288. The 18 Court has considered the pleadings filed regarding the motion, the remaining file and the file in 19 Washington v. GEO Grp., Inc., Western District of Washington Case No. 17-5806 RJB, which is 20 joined with this case for liability purposes. 21 For the reasons provided below, the motion for reconsideration (Dkt. 288) should be 22 denied. 23 24 2 The facts and procedural history are in the Order on Cross Motions for Summary 3 Judgment (“Prior Order”) (Dkt. 280) and are adopted here, by reference. In that Prior Order, 4 GEO’s Motion for Summary Judgment was denied. Dkt. 280. 5 GEO now files a motion for reconsideration of that Prior Order, asserting that (a) the
6 Court disregarded the evidence in the record regarding GEO’s defense to the Plaintiffs’ 7 Washington Minimum Wage Act (“MWA”) claim, (b) it erred in adjudicating GEO’s direct 8 regulation intergovernmental immunity defense, (c) the Court did not properly handle GEO’s 9 defense of intergovernmental immunity premised on discrimination, and (d) it did not address all 10 of its derivative sovereign immunity arguments. Dkt. 288. 12 Western District of Washington Local Rule (7)(h)(1) provides, “[m]otions for 13 reconsideration are disfavored. The court will ordinarily deny such motions in the absence of a 14 showing of manifest error in the prior ruling or a showing of new facts or legal authority which
15 could not have been brought to its attention earlier with reasonable diligence.”
17 GEO moves the Court to reconsider the decision to deny GEO’s motion for summary 18 judgment on its defense that the MWA’s coverage exemption for “[a]ny individual whose duties 19 require that he or she reside or sleep at the place of his or her employment . . .” applies. Dkt. 288. 20 GEO maintains that the Court overlooked the evidence in the record showing that to participate 21 in the VWP, a person must be a detainee. Id. 22 GEO’s motion for reconsideration on this issue should be denied. It has failed to “show 23 manifest error in the prior ruling or a showing of new facts or legal authority which could not 24 1 have been brought to [the Court’s] attention earlier with reasonable diligence.” The Prior Order 2 considered GEO’s assertions and proffered evidence. That evidence failed to address the critical 3 question. As stated in the Order, 4 GEO fails to acknowledge the key phrase in the exclusion - it applies to individuals “who’s duties require that he or she reside or sleep at the place of his 5 or her employment.” GEO fails to point to any facts which support the notion that the detainees’ duties require that they sleep or reside at the NWDC. All parties 6 agree that the detainees are in the custody of ICE and are not permitted to leave the facility until the detainees are ordered released or deported. It is their 7 detention which leads to the requirement that they “reside or sleep” at the NWDC. Their participation in the program does not lead to the requirement that they 8 “reside or sleep” at the NWDC.
9 Dkt. 280 (emphasis added). The Prior Order should be affirmed. 10 B. GEO’S DEFENSE OF INTERGOVERNMENTAL IMMUNITY – DIRECT REGULATION 11 GEO moves for reconsideration of the decision denying its motion for summary 12 judgment on intergovernmental immunity based on direct regulation of the federal government 13 by the state. Dkt. 288. GEO argues that the Court erred in two statements. GEO points to the 14 following: 15 [The Order] stated that “[t]here are, at least, material issues of fact on whether 16 GEO should be considered ‘the federal government itself’ for immunity purposes,” and it appears to have done so out of concern that “GEO’s claim 17 would mean that no State or local laws would apply to it.”
18 Dkt. 288 (quoting Dkt. 280). GEO argues that under the “direct regulation doctrine” a federal 19 contractor is treated as the federal government as a matter of law. Dkt. 288. 20 GEO’s motion for reconsideration on this issue should be denied. It has failed to show 21 that there was a “manifest error” in the Prior Order or “new facts or legal authority which could 22 not have been brought to [the Court’s] attention earlier with reasonable diligence.” The 23 statements to which GEO refers should be considered in context of the entire paragraph: 24 1 GEO’s assertion that, because it runs a federal immigration detention center it should be “treated the same as the federal government itself for purposes of 2 intergovernmental immunity,” is unpersuasive. Dkt. 227, at 17, n.6 (citing [United States v.] California, 921 F.3d [865,] 882 n.7 [(9th Cir 2019)]). GEO 3 attempts to extend the reach of the doctrine too far. The case that GEO cites for that provision, California, did not make such a sweeping ruling. There, the Ninth 4 Circuit found that some of the California laws relating to the immigration facility at issue there did not violate the doctrine. California, at 884 (holding that only 5 those provisions of the California law that “impose an additional economic burden exclusively on the federal government are invalid under the doctrine of 6 intergovernmental immunity”). Further, GEO’s claim would mean that no State or local laws would apply to it, contrary to the provisions in its contract with ICE. 7 There are, at least, material issues of fact on whether GEO should be considered “the federal government itself” for immunity purposes. 8 Dkt. 280. As stated in the Prior Order, GEO has failed to show that application of the MWA 9 here “directly interferes with the functions of the federal government.” Boeing Co. v. 10 Movassaghi, 768 F.3d 832, 840 (9th Cir. 2014). It has not demonstrated that the private 11 Plaintiffs’ enforcement of the MWA violates the doctrine of intergovernmental immunity 12 because GEO has not shown that it directly interferes with the functions of the federal 13 government. The Prior Order was not in error and should be affirmed. 14 C. GEO’S DEFENSE OF INTERGOVERNMENTAL IMMUNITY –
16 GEO moves for reconsideration of the portion of the Order denying its motion for 17 summary judgment based on intergovernmental immunity premised on discrimination. Dkt. 288. 18 “A state or local law discriminates against the federal government if it treats someone else better 19 than it treats the government.” Boeing Co. v. Movassaghi, 768 F.3d 832, 842 (9th Cir. 2014). 20 The Ninth Circuit recently noted that: 21 The doctrine [of intergovernmental immunity] has been invoked . . . “to prevent a state from imposing more onerous clean-up standards on a federal hazardous 22 waste site than a non-federal project, . . . to preclude cities from banning only the U.S. military and its agents from recruiting minors, . . . and to foreclose a state 23 from taxing the lessees of federal property while exempting from the tax lessees 24 1 of state property . . . Those cases dealt with laws that directly or indirectly affected the operation of a federal program or contract. 2 United States v. California, 921 F.3d 865, 880 (9th Cir. 2019)(citing Boeing, at 842-43; United 3 States v. City of Arcata, 629 F.3d 986, 988, 990–92 (9th Cir. 2010); and Phillips Chem. Co. v. 4 Dumas Indep. Sch. Dist., 361 U.S. 376, 381–82, 387 (1960)). 5 The prior Order held that “GEO has not shown it is entitled to summary judgment based 6 on a violation of the doctrine of intergovernmental immunity premised on discrimination. It has 7 not demonstrated that there are no issues of fact as to whether application of the MWA here 8 treats State contractors better than it treats the federal government’s contractor GEO.” Dkt. 280. 9 In its motion for reconsideration, GEO argues that the proper comparators are determined 10 by the legislature under U.S. Supreme Court precedent. Dkt. 288 (citing Dawson v. Steager, 139 11 S.Ct. 698, 705 (2019)). In Dawson, a dispute over whether the State of West Virginia’s tax 12 break to retired state law enforcement officers impermissibly discriminated against Dawson, a 13 retired federal marshal, the Court noted that “whether a State treats similarly situated state and 14 federal employees differently depends on how the State has defined the favored class.” Dawson, 15 at 705. GEO then asserts that the state statute at issue here is the MWA’s exemption found at 16 RCW §49.46.010(3)(k), which excludes from the definition of “employee” “[a]ny resident, 17 inmate, or patient of a state, county, or municipal correctional, detention, treatment or 18 rehabilitative institution.” Dkt. 288. GEO concludes that the Court erred in looking at how the 19 State treats State contractors as the proper comparators and argues that the proper comparators 20 are the NWDC detainees and “all Washington State detainees, regardless of contractor 21 involvement.” Dkt. 288. 22 GEO’s motion for reconsideration regarding its discrimination intergovernmental 23 immunity defense should be denied. It has failed to show that there was a “manifest error” in the 24 1 prior Order or “new facts or legal authority which could not have been brought to [the Court’s] 2 attention earlier with reasonable diligence.” GEO’s rehashes its argument that the proper 3 comparators are federal NWDC detainees and Washington detainees independent of whether the 4 detainees are held by a private contractor. Taken to its conclusion, GEO’s supposition, that the 5 proper comparators are the treatment of federal detainees and state detainees, could potentially
6 yield the inverse results that GEO intends. Indeed, GEO argues that if the MWA is enforced 7 against it, it will suffer harm. It does not point to evidence that the NWDC detainees would be 8 harmed or treated less favorably. The issue is whether the state law treats those who deal with 9 the federal government less favorably than it treats those who deal with the State. The prior 10 Order’s holding that there are issues of fact as to that issue should be affirmed. 12 GEO moves for reconsideration of the portion of the Order denying its motion for 13 summary judgment based on derivative sovereign immunity. Dkt. 288 14 As stated in the prior Order, “government contractors obtain certain immunity in
15 connection with work which they do pursuant to their contractual undertakings with the United 16 States.” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), as revised (Feb. 9, 2016). 17 This immunity is not absolute. Id. A contractor is entitled to immunity when it performs work 18 “authorized and directed by the Government of the United States.” Id., at 673. “[D]erivative 19 sovereign immunity . . . is limited to cases in which a contractor had no discretion in the design 20 process and completely followed government specifications.” Cabalce v. Thomas E. Blanchard 21 & Associates, Inc., 797 F.3d 720, 732 (9th Cir. 2015). 22 GEO’s motion for reconsideration of the order denying its motion for summary 23 judgment, based on derivative sovereign immunity should be denied. GEO asserts that the Court 24 1 did not address its arguments that GEO’s contract with ICE requires that it run the VWP, the 2 contract states that detainees can’t be employees, and “forecloses detainees from becoming 3 employees by requiring certifications that would be impossible for any detainee to complete. 4 Dkt. 288. It reasons that “[t]here is no discretion in the contract for detainees to be employees, 5 yet Plaintiffs’ argument would require GEO to make detainees employees since only employees
6 are entitled to minimum wage.” Id. (emphasis in original). 7 GEO’s motion for reconsideration on this issue should be denied. It has failed to show 8 that there was a “manifest error” in the prior Order or “new facts or legal authority which could 9 not have been brought to [the Court’s] attention earlier with reasonable diligence.” While the 10 Court did not directly address each of the arguments, it considered them and rejected them in 11 finding that “GEO has not shown that it was directed by the government to pay participants in 12 the VWP only $1 per day. GEO has not shown that it had ‘no discretion in the design process 13 and completely followed government specifications.’” Dkt. 280 (citing Cabalce, at 732). The 14 Prior Order should be affirmed.
16 It is ORDERED that: 17 • The GEO Group, Inc.’s Motion for Reconsideration of Order on Cross Motions for 18 Summary Judgment (Dkt. 288) IS DENIED. 19 The Clerk is directed to send copies of this Order to all counsel of record and to any party 20 appearing pro se at said party’s last known address. 21 Dated this 23rd day of April, 2020. A 22
23 ROBERT J. BRYAN United States District Judge 24