Gonzalez v. CoreCivic

Case: 19-50691 Document: 00515712776 Page: 1 Date Filed: 01/20/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

January 20, 2021

No. 19-50691 Lyle W. Cayce

Clerk

Martha Gonzalez, individually and on behalf of all

others similarly situated,

Plaintiff—Appellee,

versus

CoreCivic, Incorporated,

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:18-CV-00169

Before Smith, Ho, and Oldham, Circuit Judges.

James C. Ho, Circuit Judge:

Judges are not legislators. Legislators write laws—judges faithfully

interpret them. So if a party wishes to have its activities exempted from a

statute, it must ask the Legislature to enact such an exemption, not the

judiciary.

The Trafficking Victims Protection Act of 2000 (TVPA) imposes civil

liability on “[w]hoever knowingly provides or obtains the labor or services of

a person” by certain coercive means. 18 U.S.C. § 1589(a). See also id. § 1595

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(civil remedy). CoreCivic claims its work programs categorically fall outside

the reach of this forced-labor prohibition. But the text of the Act contains no

such detainee-labor exemption. CoreCivic simply theorizes that Congress

would not have wanted the law to reach work programs like the ones it runs.

We agree with the district court as well as the Eleventh Circuit in

rejecting this theory and therefore affirm. See Barrientos v. CoreCivic, Inc.,

951 F.3d 1269, 1276–78 (11th Cir. 2020).

I.

CoreCivic is a private company that operates detention facilities

holding alien detainees on behalf of Immigration and Customs Enforcement

(ICE). As part of its contract with ICE, CoreCivic provides a work program

for the detainees. See U.S. Immigration & Customs Enf’t,

Performance-Based National Detention Standards 2011

§ 5.8(I), (V) (PBNDS). The PBNDS requires these work programs to be

voluntary. Id. at § 5.8(II)(2).

But according to Martha Gonzalez, a former detainee, CoreCivic’s

work programs are not voluntary. In truth, she says, 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 moved to dismiss on the ground that the TVPA does not

regulate “labor performed by immigration detainees in lawful custody.” Or

to rephrase it more bluntly, that its activities are categorically exempt from

the TVPA. The district court denied the motion, concluding that the plain

terms of § 1589(a) cover labor conducted by immigration detainees in a

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private detention center. See Gonzalez v. CoreCivic, Inc., 2019 WL 2572540,

at *2 (W.D. Tex. Mar. 1, 2019).

The district court then granted CoreCivic’s motion to certify the

following question for interlocutory appeal: “Whether the TVPA applies to

work programs in federal immigration detention facilities.” We agreed to

accept the appeal under 28 U.S.C. § 1292(b).

II.

“In statutory interpretation disputes, a court’s proper starting point

lies in a careful examination of the ordinary meaning and structure of the law

itself.” Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019).

Together, §§ 1589(a) and 1595 impose 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). CoreCivic contends that this language does not

capture labor performed in work programs in a federal immigration detention

setting.

But nothing in the text supports this claim. CoreCivic is clearly an

entity covered by the term “whoever.” See 1 U.S.C. § 1 (defining

“whoever” to include “corporations, companies, associations, firms,

partnerships, societies, and joint stock companies, as well as individuals”).

It has clearly “obtain[ed]” the labor of these alien detainees. See Obtain,

American Heritage Dictionary (5th ed. 2011) (defining “obtain”

as “[t]o succeed in gaining possession of as the result of planning or

endeavor; acquire”). And CoreCivic does not even try to dispute that the

term “person” naturally encompasses alien detainees.

Instead, CoreCivic theorizes that, if we apply § 1589 to its work

programs, then as night follows day, we must also apply it to parents who

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compel their children to do ordinary household chores. The argument does

not bear scrutiny. By that logic, a thief who steals a toy from a child could

avoid a larceny conviction by claiming that no one would convict a parent for

taking his child’s toy away for misbehavior. That argument would surely fail.

And that is presumably 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. As

CoreCivic acknowledges, the Sixth Circuit had little trouble concluding that

“forcing children to do household chores cannot be forced labor without

reading [§ 1589] as making most responsible American parents and guardians

into federal criminals . . . . An American parent has always had the right to

make his child perform household chores.” United States v. Toviave, 761 F.3d

623, 625 (6th Cir. 2014).

Alternatively, CoreCivic claims that § 1589 must be construed

narrowly to cover only forced labor that arises in the international human

trafficking context. To support that claim, it cites various Congressional

findings that express concerns specific to international human trafficking.

But the text of § 1589 itself is broad, and not limited to forced labor in the

international human trafficking context.

CoreCivic also invokes Bond v. United States, 572 U.S. 844 (2014), for

the proposition that “[p]art of a fair reading of statutory text is recognizing

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that ‘Congress legislates against the backdrop’ of certain unexpressed

presumptions.” Id. at 857 (quoting EEOC v. Arabian Am. Oil Co., 499 U.S.

244, 248 (1991)). According to CoreCivic, one such “unexpressed

presumption” is that detainees would continue to be subject to work

requirements in the detention context.

But that overreads Bond. Bond concerns federalism and “the

well-established principle that it is incumbent upon the federal courts to be

certain of Congress’ intent before finding that federal law overrides the usual

constitutional balance of federal and state powers.” Id. at 858 (cleaned up).

See also Loughrin v. United States, 573 U.S. 351, 362 (2014) (same). Bond does

not give courts a free-floating power to create statutory exemptions anytime

a judge thinks Congress would have exempted a certain activity had anyone

asked.

Because it lacks any serious textual argument, CoreCivic is forced to

resort to extratextual considerations. It quotes extensively from the

legislative history of the TVPA to bolster its argument that § 1589(a) applies

only to international human trafficking—and thus not to work programs in

federal immigration detention facilities. But legislative history cannot

“‘muddy’ the meaning of ‘clear statutory language.’” Food Mktg. Inst., 139

S. Ct. at 2364 (quoting Milner v. Dep’t of the Navy, 562 U.S. 562, 572 (2011)).

Finally, CoreCivic invokes the rule of lenity. But that canon of

interpretation has force only where a law is “grievously ambiguous, meaning

that the court can make no more than a guess as to what the statute means.”

Shular v. United States, 140 S. Ct. 779, 789 (2020) (Kavanaugh, J.,

concurring). And § 1589(a) does not contain a categorical exemption—not

even an ambiguous one—for work programs in detention facilities.

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***

Because on its face § 1589 unambiguously protects labor performed in

work programs in federal immigration detention facilities, the “judicial

inquiry is complete.” Rubin v. United States, 449 U.S. 424, 430 (1981). We

affirm.1

1

Amicus curiae contends that it would be absurd to interpret the TVPA to

impose liability for labor obtained pursuant to PBNDS-compliant, federally-contracted

work programs. Amicus also argues that CoreCivic may have immunity as a

government contractor. See, e.g., Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 166

(2016); Ackerson v. Bean Dredging LLC, 589 F.3d 196, 204 (5th Cir. 2009). We express

no view on these arguments. It may be that CoreCivic is immune from liability, or that

it did not actually “obtain[]” Plaintiffs’ labor in a manner prohibited by the TVPA. But

these questions are beyond the scope of the narrow question we accepted for

interlocutory appeal—whether the TVPA “applies” to work programs in federal

immigration detention facilities—and should therefore be addressed in the first

instance by the district court.

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James C. Ho, Circuit Judge, concurring:

According to the dissent, we should resolve this appeal by deciding an

issue not presented by the parties, either here or before the district court. But

just last year, the Supreme Court rebuked the Ninth Circuit for doing just

that—deciding an issue not presented by the parties, either on appeal or

before the district court, without any compelling justification for doing so.

See United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020).

“In our adversarial system of adjudication, we follow the principle of

party presentation.” Id. at 1579. “[W]e rely on the parties to frame the

issues for decision and assign to courts the role of neutral arbiter of matters

the parties present.” Id. (quoting Greenlaw v. United States, 554 U.S. 237,

243 (2008). “Our system ‘is designed around the premise that parties

represented by competent counsel know what is best for them, and are

responsible for advancing the facts and argument entitling them to

relief.’” Id. (cleaned up) (quoting Castro v. United States, 540 U.S. 375, 386

(2003) (Scalia, J., concurring in part and concurring in the judgment)). “In

short: Courts are essentially passive instruments of government.” Id.

(cleaned up). “They do not . . . sally forth each day looking for wrongs to

right. They wait for cases to come to them, and when cases arise, courts

normally decide only questions presented by the parties.” Id. (cleaned up).

The dissent nevertheless insists that we should have reached the

alleged pleading deficiency it has identified in this case. It accuses the

majority of abdicating our judicial duty by answering only the question

requested by the defendant and certified by the district court for

interlocutory appeal. As the dissent puts it, “[w]e have no more right to

decline the exercise of jurisdiction which is given, than to usurp that which is

not given.” Post, at 13 (quoting Cohens v. Virginia, 19 U.S. 264, 404 (1821)).

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But an 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.

For example, the dissent relies on our en banc decision in Castellanos-

Contreras v. Decatur Hotels, LLC, 622 F.3d 393 (5th Cir. 2010). But there we

confirmed that this is a matter of discretion, not duty: “The conclusion that

we have the power to consider these [unspecified] questions does not end our

jurisdictional analysis. Interlocutory review under § 1292(b) is not

mandatory; rather, it is discretionary. Thus, we must consider whether we

should address these questions at this stage.” Id. at 399 (emphases added).

And that conclusion is entirely compatible with Supreme Court precedent.

Nothing in United States v. Stanley, 483 U.S. 669 (1987), suggests that courts

are ever duty-bound to decide an uncertified issue. And Yamaha Motor Corp.

v. Calhoun, 516 U.S. 199 (1996), makes clear that an “appellate court may

address any issue fairly included within the certified order.” Id. at 205

(emphasis added).

What’s more, the dissent is unable to cite a single case where our court

did what it urges us to do here—that is, exercise our discretionary

interlocutory jurisdiction to reach an issue not presented by the parties either

before the district court or on appeal. None of the cases cited by the dissent

support this kind of judicial adventurism—and certainly not in the face of the

Supreme Court’s unanimous admonition in Sineneng-Smith.1

1

For example, in Castellanos-Contreras, we went out of our way to explain that

we were deciding an uncertified issue only because the parties had repeatedly pressed

it: “[T]he parties have briefed the merits three times: to the original panel, in

connection with the rehearing petitions, and in merits briefing to the en banc court.

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So the idea that the dissent finds so abhorrent—“that we can choose,

in our discretion, to limit ourselves to the question certified by the district

court”—isn’t just some half-baked “theory.” Post, at 13. It’s the law.

***

To be sure, the party presentation principle is “supple, not ironclad.”

Sineneng-Smith, 140 S. Ct. at 1579. “There are no doubt circumstances in

which a modest initiating role for a court is appropriate.” Id. See also id. at

1582–83 (listing some such circumstances).

“But this case scarcely fits that bill.” Id. at 1579. The defendant here,

like the defendant in Sineneng-Smith, didn’t just fail to present the issue in

question. It “presented a contrary theory of the case in the District Court.”

Id. at 1581.

In the district court, CoreCivic admitted in its motion to dismiss that

Gonzalez’s complaint “alleges she was threatened with ‘punishment,

including but not limited to lockdown and/or solitary confinement’”—and

conceded that that is “conceivably enough at this stage to allege a ‘threat of

serious harm’ under [18 U.S.C. §§ 1589] (a)(2) and (a)(4).” So the dissent’s

theory—that Gonzalez’s complaint fails because compliance with the

PBNDS constitutes compliance with the TVPA, and so Plaintiff must

separately allege a violation of the PBNDS in order to adequately plead a

Additionally, this case has been the subject of two oral arguments. After so much time

and effort has been expended by both the parties and the court as a whole, the

discretionary decision now becomes much different, and the majority of the court agrees

it should be resolved in favor of hearing the merits.” 622 F.3d at 399–400. So too in

Cazorla v. Koch Foods of Mississippi, L.L.C., 838 F.3d 540 (5th Cir. 2016), Luera v. M/V

Alberta, 635 F.3d 181 (5th Cir. 2011), and Brabham v. A.G. Edwards & Sons Inc., 376

F.3d 377 (5th Cir. 2004). The parties argued the unspecified issue before the district

court and on appeal in Cazorla, 838 F.3d at 546–49, and Brabham, 376 F.3d at 379–80

& n.2, and on appeal in Luera, 635 F.3d at 186–87.

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violation of the TVPA—is not just an argument that Defendant never made,

either before the district court or on appeal. It’s one that directly conflicts

with Defendant’s actual positions before the district court.

If anything, then, this is an especially weak case for disregarding the

party presentation principle. Of course, if 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.

But this brings up yet another problem with deciding the unspecified

issue on interlocutory appeal. Gonzalez has already asked the district court

for leave to amend her complaint in the event it is found deficient. Even

accepting, then, the dissent’s theory of pleading defect (and even setting

aside the party presentation principle), I see no reason why we would deprive

Gonzalez of the opportunity to amend her complaint, and the dissent offers

none. So whatever we do, we aren’t ending this litigation today—not under

the majority’s theory or the dissent’s.

***

The approach proposed by the dissent is a marked departure from our

established norms—both the principle of party presentation and the judicial

discretion not to reach uncertified issues (particularly when no party has

asked us to do so). The dissent disagrees with the majority’s adherence to

these norms. But it should not be surprised by it. It’s what the Eleventh

Circuit did in Barrientos v. CoreCivic, Inc., 951 F.3d 1269 (11th Cir. 2020)—a

case involving the same defendant and the same specified issue on

interlocutory appeal. And it’s what the Supreme Court instructed in

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Sineneng-Smith—consistent with the proper, restrained role of the judiciary

in our adversarial system of adjudication. I concur.

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Andrew S. Oldham, Circuit Judge, dissenting:

The majority and I agree that our jurisdiction under 28 U.S.C.

§ 1292(b) extends to the entire “order” we certified for interlocutory review.

We disagree about whether to exercise that jurisdiction. I would exercise it

and reverse.

I.

I begin, as always, with jurisdiction and the statutory text. We have

jurisdiction under 28 U.S.C. § 1292(b). The text provides:

When a district judge, in making in a civil action an order not

otherwise appealable under this section, shall be of the opinion

that such order involves a controlling question of law as to which

there is substantial ground for difference of opinion and that an

immediate appeal from the order may materially advance the

termination of the litigation, he shall so state in writing in such

order. The Court of Appeals . . . may thereupon, in its

discretion, permit an appeal to be taken from such order, if

application is made to it within ten days after the entry of the

order.

28 U.S.C. § 1292(b) (emphases added). The statutory text indicates that

“appellate jurisdiction applies to the order certified to the court of appeals,

and is not tied to the particular question formulated by the district court.”

Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996); see also United

States v. Stanley, 483 U.S. 669, 677 (1987) (explaining that § 1292(b) “brings

the ‘order,’ not the question, before the court”). Our en banc precedent is in

accord. See Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 398–

400 (5th Cir. 2010) (en banc). As is the leading federal courts treatise. See 16

Charles Alan Wright, Arthur R. Miller & Edward H.

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Cooper, Federal Practice and Procedure § 3929, at 454 (3d ed.

2012) [hereinafter “Wright & Miller”] (“[T]he scope of the issues

open to the court of appeals is closely limited to the order appealed from, but

not to the specific stated question.”). Thus, our panel unanimously agrees

that we can review the district court’s “entire order, either to consider a

question different than the one certified as controlling or to decide the case

despite the lack of any identified controlling question.” Yamaha, 516 U.S. at

205 (quotation omitted).

Here, the district court denied CoreCivic’s motion to dismiss under

Rule 12(b)(6). That’s the order the district court certified under 28 U.S.C.

§ 1292(b), and it’s the order we accepted for interlocutory appeal under that

same provision. In the certified-and-accepted order, the district court

identified what it thought was a controlling legal question—namely, whether

CoreCivic is exempted from the Trafficking Victims Protection Act. But the

text of § 1292(b), Yamaha, Stanley, Castellanos-Contreras, and Wright &

Miller all say that we are not limited to the question identified by the

district court. Again, our jurisdiction extends to “the order”—that is, the

order denying CoreCivic’s motion to dismiss.

The majority nonetheless says we have discretion not to exercise that

jurisdiction. But cf. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821)

(“We have no more right to decline the exercise of jurisdiction which is

given, than to usurp that which is not given.”). The majority’s theory appears

to be that we can choose, in our discretion, to limit ourselves to the question

certified by the district court.

There are courts that have such discretion, but ours is not one of them.

For example, state courts have discretion to answer certified questions. See,

e.g., Tex. R. App. P. 58.1. One reason why is because they’re not bound by

Article III’s case-or-controversy requirement—which means they’re also

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not bound by Article III’s prohibition on advisory opinions. See Letter from

Chief Justice John Jay and the Associate Justices to President George

Washington (Aug. 8, 1793), in 3 Correspondence & Public Papers

of John Jay 488–89 (Johnson ed., 1891). If President Washington had

asked the Pennsylvania Supreme Court what to do about the Little Sarah and

Citizen Genêt, he might’ve gotten an advisory opinion. But he chose to ask

the U.S. Supreme Court, so all he got was a reminder that federal courts do

only one thing: decide cases and controversies. See ibid.

We decide them not by answering abstract legal questions but by

rendering judgments. As Justice Scalia once explained for the Court:

[T]he Framers crafted [Article III’s] charter of the judicial

department with an expressed understanding that it gives the

Federal Judiciary the power, not merely to rule on cases, but to

decide them, subject to review only by superior courts in the

Article III hierarchy—with an understanding, in short, that a

judgment conclusively resolves the case because a “judicial

Power” is one to render dispositive judgments.

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218–19 (1995) (quotation

omitted). And when it comes to rendering judgments, we do not have

discretion. We have to get the judgment right. Every time.

Perhaps we could limit ourselves to the district court’s certified

question when it’s sufficient to reach the correct judgment. For example, if

the district court made two mistakes, we could exercise discretion to correct

only the one certified by the district court. See Reese v. BP Expl. (Alaska) Inc.,

643 F.3d 681, 689–90 (9th Cir. 2011). But I do not understand how we could

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affirm on the certified question where we’re convinced that a second,

uncertified one would require reversal. 1

That’s particularly true when we’re exercising jurisdiction under

§ 1292(b). After all, § 1292(b) authorizes that jurisdiction where “an

immediate appeal from the order may materially advance the ultimate

termination of the litigation.” And it does nothing to advance the litigation—

in fact, it does the opposite—when we send a case to discovery in the face of

a deficient complaint. See Cazorla v. Koch Foods of Miss., L.L.C., 838 F.3d

540, 548 (5th Cir. 2016) (reviewing an uncertified question where “fully

addressing” the order could “hasten the end of th[e] already long-running

litigation”); Brabham v. A.G. Edwards & Sons, Inc., 376 F.3d 377, 380 n.2 (5th

Cir. 2004) (reviewing an uncertified question where doing so would

“expeditiously resolve” the litigation). In the interest of advancing the

litigation as required by § 1292(b), our court has even extended review to

questions that were neither briefed by the parties nor certified by the district

court. See, e.g., Luera v. M/V Alberta, 635 F.3d 181, 186 (5th Cir. 2011)

1

There are plenty of other examples where federal courts have discretion to

exercise jurisdiction—for example, courts can certify questions to state courts or abstain

under Pullman, Younger, Colorado River, &c. But of course, none of those entails entering

an erroneous judgment. And even the most ardent proponents of jurisdictional discretion

insist that it’s guided by some principle exogenous to the case or controversy. Compare

David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543, 577–79 (1985)

(defending “principled discretion” in exercising jurisdiction, guided by “criteria drawn

from the relevant statutory or constitutional grant of jurisdiction or from the tradition

within which the grant arose”), with Martin Redish, The Federal Courts in

the Political Order: Judicial Jurisdiction and American Political

Theory 47–74 (1991) (arguing failure to exercise jurisdiction cannot be reconciled with

Congress’s lawmaking role), and Alexander Bickel, The Least Dangerous

Branch: The Supreme Court at the Bar of Politics 173 (1962) (arguing

that, whatever jurisdictional discretion the Supreme Court might have, inferior federal

courts must “resolve all controversies within their jurisdiction, because the alternative is

chaos”).

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(addressing an unbriefed, uncertified question because resolving it could

moot other questions).

II.

We unquestionably have jurisdiction over the district court’s entire

order denying CoreCivic’s motion to dismiss under Rule 12(b)(6). Reviewing

that order, I am convinced that plaintiff failed to state a claim. See Bell Atl.

Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).

I would reverse and instruct the district court to dismiss the complaint.

A.

Gonzalez alleges that CoreCivic is operating (and the United States is

paying for) a slave-labor camp. That claim implicates two statutes: one that

authorizes detainee work programs and another that prohibits human

trafficking.

Let’s start with the statutory authorization. Congress has long

authorized paid voluntary work programs for noncitizens in detention. See 8

U.S.C. § 1555. Section 1555 authorizes the “payment of allowances to aliens,

while held in custody under the immigration laws, for work performed.”

Ibid.; see also Dep’t of Just. Appropriation Act, Pub. L. No. 95-86, 91 Stat.

426 (1978) (setting pay rate for detainee work pursuant to voluntary work

program at $1 per day). Such work programs are governed by Immigration

and Customs Enforcement’s Performance-Based National Detention

Standards. See Immigr. and Customs Enf’t, Performance Based National

Detention Standards § 5.8, at 405–09 (2011) [hereinafter “PBNDS”]. The

PBNDS allows detainees to “volunteer for work assignments” and

guarantees monetary compensation of “at least $1.00 (USD) per day” for

any work completed. Id. at 405, 407. PBNDS programs are purely voluntary:

“Detainees shall be able to volunteer for work assignments but otherwise

shall not be required to work, except to do personal housekeeping.” Id. at

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405. CoreCivic operates PBNDS programs in Texas for the benefit of the

United States and ICE.

On the extreme other end of the voluntariness spectrum is the

Trafficking Victim Protection Act of 2000, Pub. L. No. 106-386, 114 Stat.

1464 (“TVPA”). Congress enacted the TVPA to prohibit slavery. See 22

U.S.C. § 7101(a). The TVPA imposes criminal penalties on “[w]hoever

knowingly provides or obtains the labor or services of a person by any one of,

or by any combination of” threats, force, restraint, or threat of harm or abuse.

18 U.S.C. § 1589(a), (d). Section 1595 permits “an individual who is a victim

of a violation” to bring a civil action against the perpetrator to recover

damages. Id. § 1595. Gonzalez alleges that CoreCivic’s PBNDS programs are

not voluntary at all; in reality, she says, they’re slave-labor camps that entitle

her to money damages under the TVPA.

Thus to state a claim, Gonzalez first must allege that CoreCivic

violated the PBNDS. In the absence of such an allegation, PBNDS programs

like CoreCivic’s are by definition voluntary. See PBNDS § 5.8 at 405. Then,

assuming Gonzalez pleaded that CoreCivic’s work programs are involuntary,

she must also allege that they violate the TVPA’s anti-slavery provisions.

B.

1.

Let’s start with Gonzalez’s purely conclusory allegations. These must

be ignored altogether. See Iqbal, 556 U.S. at 680–81.

For example, Gonzalez claims that “CoreCivic owns forced labor

camps” that treat detainees as a “slave labor force” to “amass profits and

revenues.” She further claims that “CoreCivic’s acts were carried out with

intent, malice, oppression, fraud and duress” with the only goal being profit

maximization. The complaint alleges that CoreCivic’s business model is a

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“go directly to jail and work for free” system, under which the company uses

“egregious, unconstitutional, illegal and unfair labor practices” to

“maximize its profits.” The complaint further explains that the company

“made it very clear, through words and deeds, that unless the detainees

worked, CoreCivic would increase their misery.” Gonzalez claims that these

“draconian and harsh” conditions and the forced labor led to billions of

dollars in revenue for CoreCivic, while causing “severe mental distress and

anguish” to enslaved detainees.

These conclusory allegations are insufficient to state a claim under

Twombly and Iqbal. They boil down to little more than “formulaic recitation

of the elements” of a claim under the TVPA—namely, that CoreCivic

maliciously runs slave-labor camps focused on extracting free labor to bolster

corporate bottom lines. Twombly, 550 U.S. at 555. The allegations fail not

because of their fanciful nature, but instead because they contravene Twombly

and Iqbal by nakedly asserting conclusions. See Iqbal, 556 U.S. at 681;

Twombly, 550 U.S. at 551.

2.

Not all of Gonzalez’s claims are so conclusory, however. For example,

Gonzalez alleges that “detainees were forced to work, and if they refused,

they were subjected to various punishments, including but not limited to

solitary confinement and deprivation of facilities.” Specifically, Gonzalez

claims that CoreCivic forced detainees to “clean the ‘pods’ where they were

housed, and . . . clean, maintain, and operate other areas of the CoreCivic

detention facilities under threat of punishment.” Gonzalez claims that she

worked “virtually every day . . . in the kitchen, [and] sorting clothing” among

other duties. According to Gonzalez, “CoreCivic continually” told

“detainees that the work was voluntary” but subversively threatened them

with punishment if they refused. This threatened punishment included

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subjecting detainees to solitary confinement, denying them “toothbrushes

and toothpaste,” and forcing them to “wait hours” for “sanitary or other

feminine products.”

Gonzalez plainly alleges that she was forced to work—but she does

not allege that any of these requirements violated the PBNDS. For example,

Gonzalez complains that she was required to clean her “pod” at threat of

penalty. That isn’t helpful for showing CoreCivic’s liability under the TVPA

because the PBNDS requires detainees to clean their private cells, and the

PBNDS falls outside of the reach of the TVPA. See PBNDS § 5.8V(C), at

406. Under the PBNDS, detainees’ refusal to clean their private areas can

subject them to loss of commissary privileges to purchase personal hygiene

items, and even to solitary confinement of up to 72 hours. See id. § 3.1 app.

3.1.A, at 225–26. Gonzalez further claims that she worked in a variety of

contexts and was paid between $1.00 and $2.00 per day. But the PBNDS

plainly authorizes all of this under specified circumstances—and Gonzalez

does not allege that CoreCivic ever exceeded the PBNDS’s disciplinary

measures.

Gonzalez also focuses on the alleged threats to detainees who refused

to work. But the complaint doesn’t identify any particular instances of

CoreCivic threatening detainees. See Morgan v. Swanson, 659 F.3d 359, 370

(5th Cir. 2011) (en banc) (declining to adopt naked assertions “devoid of . . .

factual enhancement” (quotation omitted)). Nor does it differentiate

between alleged punishment for failing to perform work that a detainee has

voluntarily assumed (as permitted by the PBNDS) and punishment for

refusal to participate in the voluntary work program to begin with. Further,

Gonzalez alleges that CoreCivic threatened her with the loss of certain

personal items. But she does not allege that CoreCivic did so in violation of

the PBNDS. And the PBNDS specifically authorizes CoreCivic to take away

commissary privileges (and hence access to personal items) when detainees

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commit disciplinary infractions. See PBNDS § 3.1 app. 3.1.A, at 226. Thus,

Gonzalez’s threat allegations are at very most consistent with liability under

the TVPA—and that’s insufficient to survive Rule 12(b)(6). See Iqbal, 556

U.S. at 678; Twombly, 550 U.S. at 557.

III.

Finally, a word about United States v. Sineneng-Smith, 140 S. Ct. 1575

(2020). In that case, the Ninth Circuit appointed amici, invited them to brief

and argue novel issues framed by the panel, and introduced legal questions

never raised by either party at any point in the case. Id. at 1578. Then, based

solely on questions injected into the case by the Ninth Circuit, the panel held

a federal statute unconstitutional. See id. at 1581. The Supreme Court

reversed because the Ninth Circuit affected a “radical transformation” of the

case and violated the party-presentation principle. Id. at 1582.

My position is the opposite of Sineneng-Smith. That’s for at least two

reasons.

First, I would follow the Supreme Court’s specific instructions in

Yamaha and Stanley (as well as our en banc court’s instructions in

Castellanos-Contreras). It would be quite something if following the Supreme

Court’s instructions regarding § 1292(b) jurisdiction somehow violated the

party-presentation principle. And far from urging anyone to hold

unconstitutional a statute enacted by Congress, I would decide this case by

respecting the statutes Congress enacted to regulate our jurisdiction and to

bless voluntary work programs.

Second, the parties have vigorously litigated the deficiencies in

Gonzalez’s complaint. In its answer, CoreCivic argued that Gonzalez failed

to state a claim. And in its motion to dismiss, CoreCivic alleged two

infirmities in Gonzalez’s complaint. First, CoreCivic reasserted the absence

of factual pleadings sufficient to withstand 12(b)(6) scrutiny. And second, the

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motion to dismiss explained that Gonzalez failed to plead facts sufficient to

make the necessary predicate finding that CoreCivic violated the voluntary

work program expressly authorized by Congress in the Department of Justice

Appropriation Act of 1978. It’s the denial of that Rule 12(b)(6) motion that’s

before us today.

* * *

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.

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