[00:00:09] Speaker 00:
Good morning and may it please the court.

[00:00:10] Speaker 00:
I'm Dominic Dre and I represent the appellant, the GEO Group.

[00:00:14] Speaker 00:
I will try to reserve at least three minutes for rebuttal.

[00:00:17] Speaker 00:
For at least two centuries, Congress has allowed federal officers

[00:00:22] Speaker 00:
to remove cases to federal court.

[00:00:24] Speaker 00:
And the reason is clear, because sometimes federal policy is unpopular locally, including in states like Washington with popularly elected judges.

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That's been true since the founding.

[00:00:34] Speaker 00:
It was true through the enforcement of prohibition, through the civil rights era.

[00:00:38] Speaker 00:
Today, federal immigration policy is unpopular with Washington politicians who, as this court just in the last year in United States versus King County, that's the Boeing Field case,

[00:00:49] Speaker 00:
noted are perfectly happy

[00:01:05] Speaker 00:
and in so doing made a number of errors, including involving the legal standard for federal officer removal under 1442A1, and also on the three supremacy clause doctrines at issue in this case.

[00:01:19] Speaker 00:
Start with the easiest of these, which is the standard for federal officer removal, which is incredibly forgiving.

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A removing party doesn't have to win the case on removal, it just has to state a colorable federal defense,

[00:01:33] Speaker 00:
That, by the way, was the only prong on which the district court ruled against GEO.

[00:01:39] Speaker 00:
And it rejected the notion that any of these were credible, or colorable, excuse me, and moreover, faulted GEO, and this is at page 12 of the appendix, or of the excerpts, rather, where it says that by seeking, or filing a motion to dismiss based on failure to join a necessary party, that that somehow conceded that the three doctrines at issue on removal were frivolous.

[00:02:04] Speaker 00:
That alone is a clean basis to reverse and send us back.

[00:02:09] Speaker 04:
What would we send you back to?

[00:02:11] Speaker 00:
Back to the Western District of Washington.

[00:02:18] Speaker 00:
But that inference was unjustified.

[00:02:20] Speaker 00:
There's no authority for that proposition that you have to move on one of the three grounds that you cite in your removal papers.

[00:02:25] Speaker 02:
Is your claim based on derivative sovereign immunity?

[00:02:29] Speaker 00:
Yes, Your Honor, that's one of three.

[00:02:31] Speaker 00:
Derivative sovereign immunity,

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Intergovernmental immunity, which was the one in the Boeing.

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That was the doctrine that did the work in Boeing field.

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And then preemption, of course.

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And so I'm happy to walk through those.

[00:02:43] Speaker 02:
Well, let's start with that one.

[00:02:44] Speaker 02:
What evidence is there that some official of ICE directed the GEO employee

[00:02:54] Speaker 02:
to exclude the other side?

[00:02:56] Speaker 00:
Yes.

[00:02:57] Speaker 00:
ER 74, your honor, is the sworn affidavit that explains that, I believe his name is Jeff White, the ICE, the local person in charge, came back to the area where the inspector and my friend on the other side were waiting and advised them that ICE was denying access to the facility.

[00:03:16] Speaker 00:
GEO, and this is in the excerpts a few pages prior, GEO only took a form

[00:03:23] Speaker 00:
and ran it up to ICE.

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That's the only GEO employee who's involved in this saga.

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And it's worth bearing that in mind because this is a facility that has exactly one client.

[00:03:33] Speaker 04:
Let me just stop there because if Washington shows up, we're here for health reasons or health inspection and

[00:03:45] Speaker 04:
The person at the front desk says, yikes, runs it up.

[00:03:53] Speaker 04:
And then we have White.

[00:03:56] Speaker 04:
Is it White who basically says to the Department of Health, no go?

[00:04:03] Speaker 00:
Yes, literally it is White who says this.

[00:04:05] Speaker 04:
But then White doesn't say to GEO, do this, do that, right?

[00:04:10] Speaker 00:
GEO just asks White what he wants to have happen.

[00:04:14] Speaker 04:
Because, and probably the most important page in the... Isn't that in a way kind of fatal to this idea of derivative sovereign immunity?

[00:04:21] Speaker 04:
Because if the white is talking to the Department of Health and not to GEO,

[00:04:33] Speaker 04:
You see, I think we're missing something.

[00:04:35] Speaker 00:
Not quite.

[00:04:36] Speaker 00:
So your honor is articulating perfectly why this is a 12b7 dismissal for failure to join a necessary party, namely ICE.

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And because ICE is immune under Philippines versus Pimentel, the case gets dismissed.

[00:04:50] Speaker 04:
So that's that.

[00:04:50] Speaker 04:
There's a lot of moving parts in this case, but we'll stop on the necessary party, which the district court didn't rule on.

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And I know that you had a motion on that, which was

[00:05:02] Speaker 04:
terminated, or that was the terminology used.

[00:05:07] Speaker 04:
It was terminated.

[00:05:13] Speaker 04:
Is that a threshold question that you think should have been decided in the first place by the district court?

[00:05:18] Speaker 00:
Yes.

[00:05:19] Speaker 00:
That is a basis for dismissal that the district court should have reached.

[00:05:24] Speaker 00:
He didn't.

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And when we get back down in the district court, we will re-urge it, of course.

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This court can decide it on appeal, of course.

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As to your honor's question about the derivative sovereign immunity issue,

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The court ruled against us on the first prong of that doctrine, as articulated by the Supreme Court in Yearsley, which is the canonical 1940 case.

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The first prong asks whether what was done was within the constitutional power of Congress to authorize.

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And the district court

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swung and missed on that and said, well, because Congress hasn't adopted a statute requiring you to deny access, that means that it fails Yearsley's first prong.

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But look at Yearsley's pages 20 and 21 of the Yearsley decision, where the court says what was done was within the constitutional powers of Congress.

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Not that Congress did so by statute.

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Shoot, in Yearsley itself, Congress didn't require them to use, it was a paddle wheel they used to erode part of the river.

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Congress merely passed legislation saying, improve the navigability of these various rivers, and then, what I think was the precursor of the Army Corps of Engineers, approve the use of the paddle wheel.

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So even in Usely itself, it's not statutory.

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The same error appears again and again throughout the court's analysis.

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In intergovernmental immunity, the court faults GEO because the PBNDS, that's this long, long document of which we have some in the excerpts, but the PBNDS requires pre-clearance approval.

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The contract requires pre-clearance approval as well.

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That's at ER 39.

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And the district court says, well, that can't have intergovernmental immunity effect because that instruction didn't come from Congress.

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But this court's canonical case in Boeing versus Movassagy and then the more recent case of United States versus King County,

[00:07:24] Speaker 00:
none of that

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contractors of all stripes, healthcare, IT security, it all runs the gamut of government functions.

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And so, of course, you can't require Congress to have adopted each and every rule that the federal agency imposes on its contractors.

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So for those reasons, you have legal error below.

[00:07:59] Speaker 04:
Well, then there is a question, and this does permeate other aspects of the potential defenses, and that is,

[00:08:09] Speaker 04:
that there's contractual language that the contractor, that's you, Geo, shall operate and control all designated points of access and egress on the site.

[00:08:21] Speaker 04:
So how is that Mr. White's direction given within his authority

[00:08:31] Speaker 04:
if that actually is a contractual provision.

[00:08:34] Speaker 00:
I understand your honest question now.

[00:08:36] Speaker 00:
Okay, so ICE directs GEO to maintain the security, operate the, I forget the exact language, but to operate the entry points.

[00:08:46] Speaker 00:
GEO does that, but there are more details about how you perform that task.

[00:08:51] Speaker 00:
Admitting someone in or following ICE's protocols for how people get admitted is merely one way in which you man the front desk and assure security.

[00:09:01] Speaker 00:
So when people arrive who are approved, who are pre-cleared to come in, attorneys, family members with scheduled appointments, the various health inspectors whom ICE has pre-cleared to come in,

[00:09:16] Speaker 00:
There's no consult with ICE necessary in those circumstances.

[00:09:21] Speaker 00:
So the direction is to GEO to run the security of the facility, including its points of entry.

[00:09:29] Speaker 00:
And then the way in which you carry that out is by enforcing

[00:09:33] Speaker 00:
And this is the the language in its er 39 paragraph t which requires pre-clearance for access to ice facilities Contrast that your honor with rcw 43 70 170 which says quote free and unimpeded access to all buildings end quote so there you have the conflict and

[00:09:56] Speaker 00:
view it through preemption grounds, view it through derivative sovereign immunity grounds of contradicting the direction, view it through intergovernmental immunity of trying to regulate how the contractor performs the federal function.

[00:10:08] Speaker 00:
It doesn't really matter.

[00:10:09] Speaker 00:
There you have a conflict between what the state says, free and unimpeded access, and what ICE is saying, the federal government is saying, which is pre-clearance approval.

[00:10:19] Speaker 00:
So what's a contractor to do?

[00:10:21] Speaker 00:
If the facility had been run just by the federal government, suppose that the Washington Department of Health decided they were going to take a look at the health facilities at Fort Lewis, and they went down and sought access unannounced to Fort Lewis.

[00:10:35] Speaker 00:
Obviously, the Army would refuse access.

[00:10:37] Speaker 00:
and there wouldn't even be a case.

[00:10:39] Speaker 00:
There'd be no question that they can't force the federal government under basic supremacy clause doctrine to let them into the facility.

[00:10:46] Speaker 00:
Here, the only difference is that the government has chosen to use a contractor, and this court, citing the Supreme Court in Goodyear, excuse me, in, yeah, Goodyear Atomic Energy, makes clear in Boeing, quote, the federal government's decision to hire Boeing, in this case GEO, to perform its cleanup work

[00:11:07] Speaker 00:
in this case, detention, does not affect the legal analysis.

[00:11:10] Speaker 00:
That's at page 839 of the Boeing case.

[00:11:14] Speaker 00:
And that's sort of the beginning and end of the case.

[00:11:17] Speaker 00:
If the feds had been running this facility themselves, the state couldn't possibly demand free and unimpeded access.

[00:11:24] Speaker 00:
They've chosen to use a contractor.

[00:11:27] Speaker 00:
And this court's decision in Boeing's the end of that inquiry.

[00:11:31] Speaker 03:
Does Mr. Weitz's authority?

[00:11:34] Speaker 04:
Go ahead, Judge Weitzler.

[00:11:35] Speaker 03:
Sorry, I just, maybe you can help me out with another part of your contract.

[00:11:41] Speaker 03:
It says the contractor shall comply with all applicable eyes, federal, state, and local laws, statutes, regulations, and codes.

[00:11:50] Speaker 03:
If there's more than one reference, the most stringent requirement shall apply.

[00:11:54] Speaker 03:
And it doesn't say federal law or this contract shall apply.

[00:12:00] Speaker 03:
So I'm wondering why it isn't the case that

[00:12:04] Speaker 03:
the most stringent, that is, the law in Washington that requires access doesn't apply here.

[00:12:10] Speaker 00:
Yes, so that is something that our friends on the other side have argued on appeal for the first time.

[00:12:16] Speaker 00:
It was not the basis of the district court's decision.

[00:12:19] Speaker 00:
But there are four reasons, frankly, that that doesn't do the trick.

[00:12:24] Speaker 00:
The first is the contract itself.

[00:12:27] Speaker 00:
That language is in paragraph P on ER 39.

[00:12:31] Speaker 03:
I found this under sanitation and hygienic living conditions, which is why.

[00:12:37] Speaker 03:
Okay.

[00:12:40] Speaker 00:
That's, that's fine.

[00:12:41] Speaker 00:
I'm sorry.

[00:12:41] Speaker 04:
Did you say why judge?

[00:12:43] Speaker 04:
Yeah.

[00:12:44] Speaker 03:
It says why something why, and it's on page ER 83.

[00:12:52] Speaker 03:
Okay.

[00:12:52] Speaker 03:
It says exhibit 83, but.

[00:12:54] Speaker 03:
It says S-E-R, supplemental exit.

[00:12:58] Speaker 00:
Okay, that's the department's S-E-Rs.

[00:13:02] Speaker 00:
I know ours, and it's E-R 39, where I'll call the court's attention to.

[00:13:07] Speaker 00:
P has that line.

[00:13:08] Speaker 00:
Your Honor's reading the language exactly right.

[00:13:10] Speaker 00:
Where it is is not particularly important.

[00:13:13] Speaker 00:
The contract then prioritizes the PBNDES.

[00:13:15] Speaker 00:
That's paragraph J. It requires pre-clearance for facilities.

[00:13:19] Speaker 00:
That's paragraph T.

[00:13:21] Speaker 00:
All of which, plus the specific controls, the general tells us that preclearance for access to the facility is the specific rule.

[00:13:32] Speaker 00:
It's also required in the PBNDS, and that has priority over this document per paragraph J. So that's just a- So preclearance is the role.

[00:13:40] Speaker 03:
So is the problem here, is that the Department of Health for Washington State didn't get preclearance?

[00:13:49] Speaker 00:
Yes, they have to get preclearance from ICE.

[00:13:52] Speaker 00:
Now that would change, that would change its analysis.

[00:13:55] Speaker 03:
If ICE tells them... Mice are from Zio Group.

[00:13:59] Speaker 00:
From ICE.

[00:14:01] Speaker 00:
They didn't get it from anybody, so I guess that's an easy answer.

[00:14:05] Speaker 03:
The question is, where does it say they have to get it from ICE?

[00:14:09] Speaker 00:
I think if you consult the PBNDS, it makes clear that it comes from ICE, but again, in this case, they got it from no one, so it's a fairly easy case.

[00:14:20] Speaker 03:
The other reason, though, that language is... It makes a difference to who the federal officer is in this case.

[00:14:28] Speaker 00:
No, it doesn't, because contractors under IGI, you know, again, I read that language from Boeing, contractors are treated the same as the federal government when it comes to carrying out the federal function.

[00:14:41] Speaker 04:
The other reason, though, I can... I thought what Judge Wardlaw was alluding to, and if not, then I'll allude to it, and that is, doesn't it matter what the authority of Mr. White is?

[00:14:55] Speaker 00:
I mean, he is the ICE, I forget his precise title, but he is the person on site who has the ability to give the pre-clearance.

[00:15:04] Speaker 04:
Well, where do we derive that from?

[00:15:11] Speaker 00:
I mean, I guess we could present that when we're in front of the district court, but have we raised a colorable argument that the guy who's the director of the facility said you can't come in?

[00:15:21] Speaker 00:
Yes, of course.

[00:15:22] Speaker 00:
So, you know, remember the record here is rather lean because of the posture, a suespante remand.

[00:15:27] Speaker 00:
So I want to, you know, sort of bring the court back to that point.

[00:15:31] Speaker 00:
The other response to Judge Wardlock is I don't want to shortchange this.

[00:15:34] Speaker 00:
It's an important issue.

[00:15:36] Speaker 00:
The president also answers why that language doesn't control, because verbatim, the Supreme Court in Leslie Miller versus Arkansas and this court in Gartrell have addressed a contractual requirement that says applicable law, that you have to comply with applicable law.

[00:15:53] Speaker 00:
And the Supreme Court said, as did this court, that a statute cannot be applicable nor compliance with it necessary if it violates the Supremacy Clause.

[00:16:03] Speaker 00:
So it sort of begs the question to assert that it's an applicable law, because it's only applicable if it's constitutional, as applied, by the way.

[00:16:13] Speaker 00:
Because in this posture, we are the defendant, and it's an as applied challenge.

[00:16:20] Speaker 00:
So it has to be constitutional as applied in our circumstances.

[00:16:24] Speaker 00:
And that is to say, it complies with the Supremacy Clause.

[00:16:27] Speaker 00:
Because it doesn't, for any of these three reasons,

[00:16:30] Speaker 00:
DSI, derivative sovereign immunity, intergovernmental immunity, or preemption, it can't be an applicable law.

[00:16:36] Speaker 00:
And so Leslie Miller and Gartrell, which we cite throughout the briefs, sort of close that loop.

[00:16:46] Speaker 00:
With that, I'm happy to field questions.

[00:16:48] Speaker 00:
I have a few.

[00:16:50] Speaker 00:
Great.

[00:16:52] Speaker 04:
Well, let me talk about the direct regulation issue.

[00:16:56] Speaker 04:
Well, first of all, you've got the

[00:16:59] Speaker 04:
You're claiming derivative sovereign immunity and a colorable claim to that.

[00:17:04] Speaker 04:
Then you have the direct regulation.

[00:17:06] Speaker 04:
So my question on the direct regulation is whether the ICE employee has this authority under Boeing.

[00:17:17] Speaker 04:
And he's giving a verbal directive that's overriding, in effect, a contractual term.

[00:17:28] Speaker 04:
And they keep talking in the contract about the contracting officer being the big kahuna in the relationship between the government and the contractor, in this case GEO.

[00:17:43] Speaker 04:
And he's not the contracting officer.

[00:17:45] Speaker 04:
So how does he have authority to, in effect, override what the contract says?

[00:17:51] Speaker 00:
without the contracting officer.

[00:18:07] Speaker 00:
If he were trying to change the contract, that would be a different matter entirely.

[00:18:13] Speaker 00:
And I don't frankly know what his role is.

[00:18:15] Speaker 00:
If he would have that power, I doubt it.

[00:18:17] Speaker 00:
But all the business about the contracting officer goes to contract formation and amendment.

[00:18:22] Speaker 00:
There's no formation or amendment issue here, because all we're doing is following the rule that requires preclearance.

[00:18:28] Speaker 00:
That rule appears both in the contract and in the PBNDS, and the way that that maps onto Boeing, which I really think, candidly, this is probably the easiest way to deal with the case, is as a direct regulation case.

[00:18:43] Speaker 00:
The way that it maps onto Boeing is that in Boeing, you have the Atomic Energy Act, which says, I believe, the safe disposal of nuclear waste.

[00:18:54] Speaker 00:
It requires the safe disposal of nuclear waste.

[00:18:57] Speaker 00:
Here, the statutes, there are many of them, but the various immigration statutes require appropriate places of detention.

[00:19:04] Speaker 00:
I believe that's 8 USC 1231-G.

[00:19:07] Speaker 00:
appropriate places of detention.

[00:19:08] Speaker 00:
So the statutes in both instances are a bit on the vague side.

[00:19:12] Speaker 00:
And then you have regulations promulgated by the agency.

[00:19:15] Speaker 00:
In this case, ICE in Boeing, the Atomic Energy Commission, and the Department of Energy.

[00:19:22] Speaker 00:
And then they get implemented by the contractor carrying them out.

[00:19:27] Speaker 00:
And where things become problematic at a supremacy clause level is where a state purports to tell the federal contractor

[00:19:35] Speaker 00:
how to perform the federal function.

[00:19:38] Speaker 00:
So in this case, if the federal function includes access to the facility, which is specifically what we're talking about, if a state purports to tell GeoGroup how to manage access to the facility, that's like the state of California telling Boeing how clean to get the dirt.

[00:19:58] Speaker 00:
And in those cases,

[00:20:00] Speaker 00:
the federal rule has to prevail.

[00:20:03] Speaker 00:
And the intuition is, again, pretty clear, because from the founding, the government has relied on contractors to carry out its work.

[00:20:11] Speaker 00:
And if it did the work itself, it would doubtless be immune to regulation.

[00:20:18] Speaker 00:
And so all that Boeing and Goodyear Atomic versus Miller and Newsom, this court's en banc decision in Newsom, all they do is recognize that where the government is using a contractor,

[00:20:30] Speaker 00:
The same rule applies to the contractor and so here again the function is what are we going to do for access to this facility?

[00:20:39] Speaker 00:
And you have the PB nds and the contract saying one thing and state law saying free and unimpeded access and those are just at loggerheads so there are probably a million ways around it including requesting pre-clearance from ice and

[00:20:51] Speaker 00:
which the other side hasn't done.

[00:20:54] Speaker 00:
There is, by the way, I mean 6 USC 205, the immigration ombudsman law, which if the court reads one statute in this case, that's the one to read.

[00:21:04] Speaker 00:
It includes paragraph C, 205 C, allows the ombudsman unfettered, unannounced access to facilities.

[00:21:12] Speaker 00:
So there is a check on contractors.

[00:21:15] Speaker 00:
They are subject to unannounced inspections to make sure that things are going smoothly.

[00:21:20] Speaker 00:
It's just done by the federal government because the feds have decided that on this they're going to keep it in-house.

[00:21:25] Speaker 04:
So I have a couple other questions then that are kind of in a different box.

[00:21:30] Speaker 04:
You started out talking about standard of review and not wholly frivolous.

[00:21:36] Speaker 04:
And I want to ask the other side really the same question because that's kind of the defiori.

[00:21:42] Speaker 04:
statement that you've referenced.

[00:21:46] Speaker 04:
The preponderance of the evidence standard which is articulated in El Saldana, do you see that those two are reconcilable or do you see that those are two different standards?

[00:22:00] Speaker 00:
I think they are different at this procedural point in the case, although, candidly, I haven't thought deeply about it.

[00:22:07] Speaker 00:
But if you consider an analogy to diversity jurisdiction removal,

[00:22:15] Speaker 00:
things can later emerge that might cause the court to reconsider it, but if it's pled, colorably pled, that the people are of diverse citizenship, there's no forum defendant and the amount in controversy is over 75 grand, you're in federal court.

[00:22:29] Speaker 00:
And you wouldn't necessarily have a preponderance inquiry in that.

[00:22:35] Speaker 00:
Here it's the same thing for federal officers.

[00:22:37] Speaker 00:
In fact, if anything, it's probably more deferential.

[00:22:40] Speaker 00:
You know, the Supreme Court's discussion in Willingham, where it cautions against a grudging, narrow construction of the statute, and then it goes on to say, immunities are actually the most important.

[00:22:52] Speaker 00:
thing to get into federal court, because immunity is immunity from suit.

[00:22:56] Speaker 00:
That's a very valuable thing.

[00:22:57] Speaker 00:
So things like derivative sovereign immunity and intergovernmental immunity, those belong in federal court under the most forgiving possible construction of the law.

[00:23:09] Speaker 00:
But I mean, I guess at some future date, if it turned out that GEO wasn't actually working for ICE or something, which is sort of hard to imagine.

[00:23:19] Speaker 00:
If that emerged, I guess.

[00:23:20] Speaker 04:
That's mostly who they do work for.

[00:23:23] Speaker 00:
Yes.

[00:23:25] Speaker 00:
And as I was saying, there's only one client at this facility.

[00:23:28] Speaker 04:
It's only I. So another kind of procedural question.

[00:23:32] Speaker 04:
You alluded to this whole thing about the indispensable party or the Rule 19.

[00:23:37] Speaker 04:
So if we were to determine, if we were to affirm the district court's order, so you would be back in state court,

[00:23:47] Speaker 04:
And you would then play out the necessary party.

[00:23:51] Speaker 04:
And if it was a necessary party, but it wouldn't be feasible to join, then... Then Pimentel should take over.

[00:23:58] Speaker 00:
That would take over.

[00:23:59] Speaker 00:
Yeah.

[00:24:00] Speaker 00:
I think it should be the same answer in state court.

[00:24:03] Speaker 04:
And then if we were to reverse the district court and say there's some colorable ground, or by some preponderance, something was shown,

[00:24:17] Speaker 04:
Then you'd be You would then have to deal up front with the necessary party issue.

[00:24:25] Speaker 00:
I think you know procedurally I haven't really encountered this but I think it would Unterminate our pending motion under 12b7 I'm just trying to look at the practical.

[00:24:36] Speaker 00:
Yes.

[00:24:37] Speaker 00:
No, I think your honor is ways to think about exactly right Okay, but I do want to take a moment just to note the fact that we should win in Thurston County Superior

[00:24:47] Speaker 00:
doesn't change the right to be in federal court as the court knows.

[00:24:52] Speaker 04:
Any other questions?

[00:24:54] Speaker 00:
Thank you.

[00:24:54] Speaker 00:
I think I'm just at my time.

[00:25:00] Speaker 04:
You need a new clock.

[00:25:12] Speaker 01:
May it please the court.

[00:25:13] Speaker 01:
Marsha Chen for the Department of Health and I'm joined by Christina Sepe and Andrew Hughes.

[00:25:19] Speaker 01:
The state's power is at its apex when it regulates the health and safety of its residents.

[00:25:25] Speaker 01:
Gio believes it is entitled to a federal forum, but every federal forum in this circuit has expressly rejected the exact federal defenses that Gio asserts now.

[00:25:36] Speaker 01:
The district court below, when considering an equivalent workplace safety law, two different panels of the Ninth Circuit in Nozar, considering it's state minimum wage law, and another in US v. California, considering a state inspection law no different from the one here.

[00:25:51] Speaker 01:
and an en banc panel and Newsome all have concluded that Geo's federal defenses hold no water as against a generally applicable health and safety law like this one.

[00:26:03] Speaker 01:
The district court correctly remanded to state court and I'd like to start with Judge McEwen's questions about the evidentiary burden.

[00:26:12] Speaker 01:
At this stage, GEO bears the burden of showing that federal jurisdiction is appropriate.

[00:26:17] Speaker 01:
GEO bears the burden of showing its defenses are colorable.

[00:26:20] Speaker 01:
In order the Department of Health makes a factual attack on its jurisdictional allegations, i.e., whether or not ICE approval is necessary for state health inspections, GEO bears the burden of showing by preponderance of the evidence that ICE approval is necessary.

[00:26:38] Speaker 04:
I think that's a good question.

[00:26:50] Speaker 04:
I think that's a good question.

[00:26:59] Speaker 01:
The point is there is a 20-year history that GEO doesn't even refer to, where state local health inspectors have accessed the coma detention facility without ICE approval.

[00:27:10] Speaker 01:
That has been put forth in the record by the department, including weeks before the Department of Health sought access here.

[00:27:17] Speaker 01:
GEO allowed

[00:27:19] Speaker 01:
The labor and industries inspectors July 1st two weeks before the Department of Health inspectors into the same facility and the Declarations from Ellen eyes inspectors that there was no it was unannounced and there was no pre-approval required by ice on a preponderance the evidence standard Geo must put forth more evidence than it has

[00:27:39] Speaker 01:
Geo hangs its hat on what is essentially a distorted citation to the federal contracts table of contents.

[00:27:47] Speaker 01:
That's ER 39.

[00:27:49] Speaker 01:
There it says that ICE pre-approval clearance is necessary for access to ICE facilities.

[00:27:56] Speaker 01:
This is not Fort Lewis.

[00:27:58] Speaker 01:
This is a geo-operated and geo-owned facility.

[00:28:01] Speaker 01:
It is a private detention facility.

[00:28:03] Speaker 01:
It is not a federal facility.

[00:28:04] Speaker 01:
And the Newsom makes clear that there is considerable room for generally applicable state laws to apply to a private contractor such as GEO.

[00:28:13] Speaker 01:
But going back, even if you look at that provision of the table of contents of the federal contract, which says pre-clearances access is required for ICE facilities, that's obviously not GEO, but even if you look at the rest of the 100 page contract, it makes clear in 1SER 118,

[00:28:32] Speaker 01:
that that pre-clearance is only required for access to the government-required portions of the Tacoma facility.

[00:28:40] Speaker 01:
And I can make a quote.

[00:28:42] Speaker 01:
1SER 118 says, government staff, i.e.

[00:28:46] Speaker 01:
ICE, will have full access to all areas of the facility.

[00:28:50] Speaker 01:
Contractor access to government-required space must be pre-approved by the contracting officer, which Your Honor has already noted has the real authority to manage the contract, not Jeff White.

[00:29:03] Speaker 01:
In addition, the department has put forth plenty of evidence, and I think Your Honor has already flagged one SCR 110, where it says that the contractor has full access to the Tacoma facility, or has full control to operate the points of entry and points of exit of the Tacoma facility.

[00:29:21] Speaker 01:
And GEO again stipulated with a different agency, the Labor and Industries, months before this case, to allow permanent access for unannounced inspections by a different state inspector.

[00:29:34] Speaker 03:
Why the change in position?

[00:29:38] Speaker 01:
Why Geo?

[00:29:39] Speaker 01:
That probably is a question better directed at Geo, but for certain there's enough evidence in the record here to show that Geo has had the discretion and has exercised its discretion to allow inspectors into the facility.

[00:29:54] Speaker 02:
Sounds like the other department sought pre-clearance.

[00:29:59] Speaker 01:
No.

[00:30:00] Speaker 02:
They sought approval for future unannounced visits and obtained it.

[00:30:09] Speaker 01:
No, Your Honor.

[00:30:09] Speaker 02:
That's not pre-clearance?

[00:30:11] Speaker 01:
No, Your Honor.

[00:30:11] Speaker 01:
I mean, well, if we're counting a district court ordering unannounced inspections, which is what the LNI district court decision is, if we're counting that as pre-clearance, certainly, and the Department of Health has certainly done the same here.

[00:30:25] Speaker 01:
It has sought a primary injunction for access into the Tacoma facility.

[00:30:30] Speaker 01:
And I'd like to point out, GEO is making a big stink about the fact that the district court relied on its

[00:30:37] Speaker 01:
failure to include these federal defenses in its motion to dismiss.

[00:30:41] Speaker 01:
But there's other reasons to think that GEO also doesn't believe its federal defenses are colorable.

[00:30:46] Speaker 01:
That would be that it never appealed the LNI district court order.

[00:30:49] Speaker 01:
The LNI district court order considered a state law that is essentially the same.

[00:30:56] Speaker 01:
It allows for LNI inspections of any workplace.

[00:31:01] Speaker 01:
GEO didn't appeal that order.

[00:31:03] Speaker 04:
Yeah, I'm having a little trouble, though, imputing

[00:31:07] Speaker 04:
strategic decision in one case to somehow act as if that has somehow rescued a car or something.

[00:31:16] Speaker 01:
It's not res judicata, but it certainly goes to the suggestion that GEO is asserting its federal defenses, and it doesn't believe its material either.

[00:31:27] Speaker 01:
And that makes a lot of sense, because every single defense that GEO asserts have been rejected by the Ninth Circuit or other courts.

[00:31:35] Speaker 04:
So let's talk, I do agree with counsel that if they have

[00:31:42] Speaker 04:
defense probably the best colorable defense is potentially the direct regulation.

[00:31:49] Speaker 04:
And so my question is, it does seem that ICE has control over some part of this facility, right?

[00:31:57] Speaker 04:
Maybe you don't want to look at that part, but they have some control.

[00:32:00] Speaker 04:
Certainly.

[00:32:01] Speaker 04:
But then if they were asked admission to look throughout the facility, wouldn't there at least be

[00:32:10] Speaker 04:
jurisdiction for the court to determine, well, you should let him into the office or Mr. White has authority to say you can or cannot come into this little portion.

[00:32:22] Speaker 04:
I mean, there is some retained authority of the federal government, isn't there?

[00:32:33] Speaker 01:
Not on the facts that the GEO is presented right now.

[00:32:37] Speaker 01:
The facts currently is that the Department of Health sought access to the facility at the point of access and egress that GEO controls, not at the doors of the ICE administrative offices, which is at the second floor.

[00:32:49] Speaker 01:
It's on a different portion of the facility.

[00:32:51] Speaker 01:
It's at the access and egress points that GEO controls.

[00:32:55] Speaker 01:
In terms of the direct regulation defense, I would note that the general applicable law here

[00:33:00] Speaker 01:
is different from United States versus King County.

[00:33:03] Speaker 01:
United States versus King County involved a law that specifically targeted federal immigration policies and had politicians verbally stating that is the reason for the state law.

[00:33:15] Speaker 01:
Here, RCW 43.170 is a generally applicable law.

[00:33:20] Speaker 01:
And the Department of Health is responding to hundreds of complaints about the contaminated food, about the brown water, and the dirty laundry.

[00:33:32] Speaker 01:
To suggest that a private detention facility owned by a private contractor has no obligation to allow a state health department to inspect public health concerns is not colorable.

[00:33:44] Speaker 01:
And on the, Gio repeatedly points to Boeing, and I would point the court to Nozzar, which is the Ninth Circuit's most recent decision, which expressly rejected Boeing's application to the same exact facility, because the PBNDS is not a federal regulation.

[00:33:59] Speaker 01:
It is not a federal regulation at all.

[00:34:01] Speaker 01:
And even if it were, it is clear from its plain text that ICE believes and invites

[00:34:06] Speaker 01:
State cooperation in its operation of the of the federal facility and I can point the court to two different citations to ser 239 which is the introduction to the PB nds and it specifically says that ice with state and local governments and all of our stakeholders Look forward to reforming the detention facility it contemplates a role for all

[00:34:29] Speaker 01:
for state inspectors.

[00:34:32] Speaker 01:
Another citation is 2SER 490, and this is actually GEO raised this in its own reply, which says, an independent external inspector shall conduct annual inspections to ensure that the food service facilities and equipment meet governmental health and safety codes.

[00:34:49] Speaker 01:
Nothing in there suggests there's any pre-approval required by ICE.

[00:34:53] Speaker 01:
This is all authorized both by the contract and the PBNDS that suggests that state and health inspectors have a role in managing the conditions at the facility.

[00:35:05] Speaker 01:
That's both from the contract as well as from the PBNDS.

[00:35:10] Speaker 01:
I want to make sure I clarify a point that Judge Wardlaw had

[00:35:15] Speaker 01:
Geo cites to ER 39 regarding which standards should prevail if there's any conflict.

[00:35:23] Speaker 01:
And Geo's own counsel suggests that the specific controls the generic.

[00:35:29] Speaker 01:
The specific is the citation that Judge Wardlaw cited, which is at 1SER 114, which refers to sanitation and basic hygiene.

[00:35:37] Speaker 01:
And it says that the most stringent shall prevail, which is the state law.

[00:35:41] Speaker 01:
GEO, again, cites effectively the table of contents of the federal contract, which is ER 39, that suggests that the PBNDES prevail.

[00:35:51] Speaker 01:
But if you read that actual provision, that provision is clearly referring to other standards, not state law.

[00:35:58] Speaker 01:
It's referring to the American Corrections Association standards, and it says that the PBNDES will prevail.

[00:36:05] Speaker 01:
So those distorted citations to the contract are not enough to show by a preponderance of the evidence that the factual basis for GEO's jurisdictional allegations are true.

[00:36:16] Speaker 01:
In fact, they are not.

[00:36:17] Speaker 01:
And the department has repeatedly refuted that and put forth a mountain of evidence to indicate that the federal government is not directing GEO's actions.

[00:36:30] Speaker 01:
It is GEO who made the decision and GEO who has the control and access over its own facility.

[00:36:35] Speaker 04:
So let me ask you a question similar that I asked to Mr. Drave and that has to do with the indispensable party.

[00:36:47] Speaker 04:
determination.

[00:36:52] Speaker 04:
We could review that de novo.

[00:36:56] Speaker 04:
Of course, it's a legal issue.

[00:36:59] Speaker 04:
Is that something that we should look at?

[00:37:01] Speaker 04:
Would that change the calculus?

[00:37:03] Speaker 04:
What if we were to rule that ICE is an indispensable party?

[00:37:08] Speaker 01:
No, you should not reach that issue because we haven't had a chance to brief it at all.

[00:37:12] Speaker 04:
Should we remand to the district court?

[00:37:17] Speaker 01:
No, Your Honor, because that's a question and a motion that could be heard by Thurston County Superior Court, just as you identified earlier.

[00:37:23] Speaker 01:
That's certainly within the realm of possibility that a state court could consider.

[00:37:30] Speaker 04:
But that doesn't actually give me a good reason as to why the federal court shouldn't consider it first, since ICE is a fairly prominent federal agency or sub-agency.

[00:37:42] Speaker 01:
The standard for colorableness, your honor, I agree it's a low one, but it is a real one.

[00:37:47] Speaker 01:
And that is confirmed by Mesa v. California and the Supreme Court.

[00:37:52] Speaker 01:
The Supreme Court held that just because you have a federal employee, or in this case, a federal contractor, that's not enough for federal officer removal.

[00:37:59] Speaker 01:
You have to have a legitimate defense.

[00:38:01] Speaker 01:
And here, there is no legitimate defense.

[00:38:03] Speaker 01:
And there's a myriad of cases where the Ninth Circuit has found

[00:38:06] Speaker 01:
Derivative sovereign immunity and similar arguments that that geo is making here are not colorable Cobalt say is a federal officer removal case which found that those defenses were not colorable Sounds like what you're saying is that they don't have a defense that can win

[00:38:24] Speaker 01:
No, Your Honor, we're saying that their defenses have been expressly rejected, so it's clearly established that there's no colorable defense that GEO can make here.

[00:38:33] Speaker 01:
In fact, United States versus California, Noizar, Newsom, all of them have already suggested that GEO's defenses hold no water.

[00:38:43] Speaker 04:
In GEO's position, it's no matter... What about the direct regulation?

[00:38:46] Speaker 04:
What do you think is the best

[00:38:50] Speaker 04:
case that you can cite to say there's no colorable defense, following up on Judge Hawkins' question.

[00:38:57] Speaker 01:
Two different cases, Nwazir, which addressed the direct regulation defense and expressly rejected it, as well as Newsom, which stated that there's, quote, considerable room for generally applicable health and safety laws to apply to federal contractors, that there is a difference between the federal government and the federal contractors.

[00:39:17] Speaker 01:
And here, there is no replacing of federal standards as there was in Boeing.

[00:39:22] Speaker 01:
In Boeing, there was some replacing of federal standards.

[00:39:25] Speaker 01:
Here, there's no replacement of federal standards.

[00:39:27] Speaker 01:
The PB&DS itself believes that the state law applies.

[00:39:30] Speaker 01:
The contract believes that state law applies.

[00:39:33] Speaker 01:
So there's no direct regulation of the federal government by a state law that says that any place may be inspected.

[00:39:43] Speaker 01:
I just want to make sure that I also touch on what GEO could have done.

[00:39:49] Speaker 01:
Jeff White, an ICE employee that has no authority to change the contract,

[00:39:54] Speaker 01:
told the Department of Health that they were not allowed access.

[00:39:58] Speaker 01:
And GEO's suggestion is that, well, state law, Jeff White's word is the magic wand that wipes away state law.

[00:40:07] Speaker 01:
That can't be.

[00:40:08] Speaker 01:
A single federal employee's statements can't wipe away state law or shut down state regulations.

[00:40:15] Speaker 01:
If that were true, Jeff White could tell GEO that it doesn't have to pay state taxes, doesn't have to pay state building codes.

[00:40:20] Speaker 01:
So it's not magic Jeff White's position or Jeff White's words Geo could have done a number of things in that situation Geo could have told the ICE employee actually our contract suggests that we have to let them in Geo could have told Could have contacted the contracting officer and said what are our obligations here?

[00:40:40] Speaker 01:
It suggests that we might need to allow state health inspectors as you know state health inspectors in this in this instance or

[00:40:47] Speaker 01:
Or GEO could have done what it's done for 20 years.

[00:40:51] Speaker 01:
It could have allowed the state health inspectors into its facility without ICE approval, just as it has for 20 years, and two weeks beforehand.

[00:41:02] Speaker 01:
I see that I'm out of my time, but I want to make sure that I say that the district court's opinion should be affirmed.

[00:41:09] Speaker 01:
The GEO's attempt to evade state oversight of its private detention facility is not colorable.

[00:41:16] Speaker 04:
Thank you.

[00:41:17] Speaker 04:
We went a bit overtime before, so we'll give you two minutes for rebuttal.

[00:41:30] Speaker 00:
Thank you.

[00:41:31] Speaker 00:
A few quick things on rebuttal.

[00:41:34] Speaker 00:
The first is there was a lot of discussion trying to parse the PBNDS to say that it doesn't actually require preclearance and that everyone was wrong except for the people who were not party to that.

[00:41:43] Speaker 00:
First of all, the things that the other side cites for other regulators having access, PBNDS at 21, drinking water,

[00:41:51] Speaker 00:
inspections are required by the federal government, performed by a local water department.

[00:41:57] Speaker 00:
So we have a contract for that, that's true, and the contract says they can come unannounced.

[00:42:02] Speaker 00:
So that unannounced visit is, as a matter of speaking, pre-approved, because it's, we cite all these in the opening brief.

[00:42:09] Speaker 00:
249, PBNDS at 249 requires inspection of food facilities.

[00:42:16] Speaker 00:
Visitation for families and lawyers is at 393 of the PBNDS.

[00:42:19] Speaker 00:
So we're not actually letting people in left and right without government approval.

[00:42:24] Speaker 00:
And that should come as no surprise.

[00:42:26] Speaker 00:
Additionally, if the party's intent for this contract matters at all, the United States filed an amicus brief on our side in Inslee and said, we don't read this applicable laws thing to waive the Supremacy Clause and allow Washington to come in unannounced.

[00:42:43] Speaker 00:
Let me also say a word about precedent.

[00:42:45] Speaker 00:
Noizar has a petition for rehearing on Bonk pending, as the court probably knows.

[00:42:50] Speaker 00:
California, in that instance, the United States conceded, it's a preemption case, conceded the presumption against preemption

[00:42:58] Speaker 00:
applied.

[00:42:59] Speaker 00:
We make no such concession.

[00:43:01] Speaker 00:
I don't know why the federal government did that.

[00:43:03] Speaker 00:
And then Newsom is our case.

[00:43:05] Speaker 00:
Look at page 750 and its environment in Newsom where it talks about the use of contractors and the intergovernmental immunity defense.

[00:43:15] Speaker 00:
That's just fine with me.

[00:43:17] Speaker 00:
And then on King County, the other side cited some language about discrimination, but there are two prongs to intergovernmental immunity.

[00:43:23] Speaker 00:
So King County found both discrimination against the federal government and also direct regulation.

[00:43:29] Speaker 00:
So if you look at the relevant half of that opinion, it makes it clear that direct regulation is still in effect even without discrimination.

[00:43:36] Speaker 00:
And then on the 12b7 thing, I'll just call the court's attention to

[00:43:40] Speaker 00:
We cited in the opening brief the Supreme Court's recent decision in BP versus mayor and city council of Baltimore, which says the entire remand order is reviewable.

[00:43:50] Speaker 00:
And because we were faulted in that remand order for the 12-7 motion, it is absolutely properly before this court.

[00:43:57] Speaker 00:
The other side has not only had a chance to brief it, but did so in their answering brief.

[00:44:02] Speaker 04:
Thank you.

[00:44:03] Speaker 04:
Any further questions?

[00:44:05] Speaker 04:
Thank both counsel for argument.

[00:44:06] Speaker 04:
Very interesting case.

[00:44:07] Speaker 04:
Thank you also for the

[00:44:09] Speaker 04:
a very complete and thorough briefing here.

[00:44:12] Speaker 04:
The case just argued, Washington Department of Health versus GeoGroup is submitted and we're adjourned for the morning.

[00:44:18] Speaker 04:
Thank you.