Take the Fifth: Jan. 20, 2021 opinions

Designated for publication

  • Gonzalez v. CoreCivic, Inc., 19-50691, appeal from W.D. Tex.
    • Ho, J. (Smith, Ho, Oldham), Ho, J., additionally concurring, Oldham, J., dissenting; Trafficking Victims Protection Act
    • Affirming district court’s denial of defendant’s motion to dismiss claim by immigrant detainee in its facility who brought claims that defendant’s work program was involuntary and a violation of the Trafficking Victims Protection Act of 2000 (“TVPA”).
    • The TVPA “impose[s] civil liability on ‘[w]hoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of’ four coercive methods. 18 U.S.C. § 1589(a). See also id. § 1595 (civil remedy).” The plaintiff here is a former detainee who was held in a facility run by CoreCivic on a contract with the U.S. Immigration and Customs Enforcement (“ICE”). She alleges that the work program at the CoreCivic facility was not voluntary, and that “CoreCivic forced her to clean the detention facilities, cook meals for company events, engage in clerical work, provide barber services for fellow detainees, maintain landscaping, and other labors. And if she refused, the company would impose more severe living conditions, including solitary confinement, physical restraints, and deprivation of basic human needs such as personal hygiene products.” CoreCivic argued in its motion to dismiss, essentially, that the TVPA excluded lawful detention facilities from its prohibition against forced labor.
    • The Court held that there was no support for the categorical exception urged by CoreCivic in the plain text of the statute. The Court rejected CoreCivic’s argument that, “if we apply § 1589 to its work programs, then as night follows day, we must also apply it to parents who compel their children to do ordinary household chores.” The Court noted that argument must fail “because we do not construe criminal statutes like larceny or battery to reflexively apply to the parent-child relationship, but rather read them in light of parents’ well-established rights over their own children. Indeed, the Supreme Court has applied this principle to the Constitution, observing that ‘the Thirteenth Amendment was not intended to apply to exceptional cases well established in the common law at the time of the Thirteenth Amendment, such as “the right of parents and guardians to the custody of their minor children or wards.”‘ United States v. Kozminski, 487 U.S. 931, 944 (1988) (quoting Robertson v. Baldwin, 165 U.S. 275, 282 (1897)). And the same logic applies here: Not every parent in America is a slaveowner, and not every parent in America is a human trafficker.”
    • The Court also rejected CoreCivic’s appeal to Congressional findings in the legislative history of the TVPA that the statute was focused narrowly on forced labor in the context of international human trafficking, holding that “the text of § 1589 itself is broad, and not limited to forced labor in the international human trafficking context.” The Court noted that it could not create an exemption not found in the statute because courts do not have the “free-floating power to create statutory exemptions anytime a judge thinks Congress would have exempted a certain activity had anyone asked.”
    • Judge Oldham dissented. He first highlighted that the panel is in agreement that the whole order by the district court regarding the denial of CoreCivic’s motion to dismiss was within the Court’s appellate jurisdiction under 28 U.S.C. § 1292, and not just the particular question of the exemption to the TVPA that was particularly certified by the district court in its § 1292 certification. He then noted that this appellate jurisdiction over the whole order and not just the particular certified issue is not discretionary, and that the Court must review all issues implicated by the appealed order.
    • Judge Oldham then noted that he would have reversed the denial of the motion to dismiss on other grounds. In particular, Judge Oldham focused on whether the plaintiff had sufficiently stated a claim under the Iqbal/Twombly framework with regard to the voluntariness of CoreCivic’s work program. Judge Oldham held that those allegations that were sufficiently non-conclusory supported that the work duties the plaintiff alleged she had to complete were within the permissible bounds of ICE’s Performance Based National Detention Standards (“PBNDS”) and therefore not “involuntary” for purposes of the TVPA. The cleaning of the plaintiff’s pod, Judge Oldham noted, was required under the PBNDS, and the plaintiff’s receiving of $1 to $2 per day for other work was also allowed under the PBNDS. “[T]he PBNDS plainly authorizes all of this under specified circumstances—and Gonzalez does not allege that CoreCivic ever exceeded the PBNDS’s disciplinary measures.” Judge Oldham concluded, “Gonzalez alleges that a major government contractor conspired with the United States to enslave immigrant detainees. Stripped of its rhetoric, the complaint offers allegations that she was required to work at the direction of CoreCivic agents. But Gonzalez offers no allegations whatsoever that CoreCivic required her to do anything that the PBNDS did not require. That makes her complaint plainly insufficient. I would reverse.”
    • Judge Ho additionally concurred in his own opinion, to address Judge Oldham’s dissent. Specifically, Judge Ho noted that Judge Oldham’s approach would have the Court “resolve this appeal by deciding an issue not presented by the parties, either here or before the district court.” Addressing Judge Oldham’s insistence that the Court was required to address all issues implicated by the appealed order and not just the issue certified by the district court, Judge Ho wrote, “[A]n appellate court is not required to go beyond the questions certified in an interlocutory appeal—and the dissent does not cite a single authority that says otherwise. To the contrary, the dissent’s authorities confirm that this is a matter of judicial discretion, not duty.” Noting that the party presentation principle generally requires the courts to restrict their review to the issues actually present, Judge Ho observed that departure from that principle is particularly inappropriate where the issue focused on by Judge Oldham was actually contrary to positions taken by CoreCivic at the district court: “[I]f Defendant wishes to abandon its earlier position and pursue the pleading defect urged by the dissent, it may attempt to do so on remand—and the district court can determine in the first instance whether the issue is forfeited (or even waived) or remains open to litigation. As we have said on countless occasions, we are a court of review, not first view.”


  • U.S. v. Richards, 19-11118, appeal from N.D. Tex.
    • per curiam (Barksdale, Southwick, Oldham), criminal, sentencing
    • Affirming 87-month sentence of imprisonment upon guilty plea to conspiracy to possess, with intent to distribute, a substance containing a detectable amount of methamphetamine.
  • Roberts v. Lessard, 19-30039, appeal from M.D. La.
    • per curiam (Davis, Stewart, Oldham), qualified immunity
    • Reversing denial of summary judgment on qualified immunity for defendant prison officials, and rendering judgment dismissing claims against them.
  • Berry v. Wells Fargo Bank, N.A., 19-30836, appeal from M.D. La.
    • per curiam (King, Smith, Wilson), appellate jurisdiction
    • Dismissing appeal from dismissal of claims against three defendants as an appeal from a non-final judgment dismissing less than all the claims against all defendants.
  • U.S. v. Lewis, 20-30479, appeal from E.D. La.
    • per curiam (Higginbotham, Smith, Oldham), habeas corpus
    • Denying Certificate of Appealability from denial of § 2255 petition.
  • U.S. v. Garza, 20-50178, appeal from W.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), criminal, search and seizure
    • Affirming conviction of possession of 50 grams or more of actual methamphetamine with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime, and denial of motion to suppress.
  • U.S. v. Reyes-Garrido, 20-50759, appeal from W.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
    • Granting summary affirmance of 46-month within-guidelines sentence imposed following guilty plea conviction for illegal reentry after removal from the United States.