The GEO Group, Inc. v. Newsom ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THE GEO GROUP, INC., No. 2:20-cv-00533-TLN-AC 12 Plaintiff, 13 v. ORDER 14 GAVIN C. NEWSON, in his official capacity as Governor of the State of 15 California; and ROB BONTA, in his official capacity as Attorney General of the 16 State of California, 17 Defendants. 18 19 This matter is before the Court on Plaintiff The Geo Group, Inc.’s (“Plaintiff”) Motion for 20 Preliminary Injunction. (ECF No. 16.) Also before the Court is Defendants Gavin C. Newsom 21 and Rob Bonta’s (collectively, “Defendants”) Motion to Dismiss. (ECF No. 24.) Both motions 22 have been fully briefed. For the reasons set forth below, the Court GRANTS Defendants’ motion 23 and DENIES Plaintiff’s motion as moot. 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 At issue is California Civil Code § 1670.9(d) (“§ 1670.9(d)”), which creates a 180-day 3 notice and a two-hearing requirement that local governments must follow prior to issuing new 4 zoning permits for immigration detention facilities. (ECF No 1 at 1–2.) Section 1670.9(d) states, 5 (d) A city, county, city and county, or public agency shall not, on and after January 1, 2018, approve or sign a deed, instrument, or 6 other document related to a conveyance of land or issue a permit for the building or reuse of existing buildings by any private corporation, 7 contractor, or vendor to house or detain noncitizens for purposes of civil immigration proceedings unless the city, county, city and 8 county, or public agency has done both of the following: 9 (1) Provided notice to the public of the proposed conveyance or permitting action at least 180 days before execution of the 10 conveyance or permit. 11 (2) Solicited and heard public comments on the proposed conveyance or permit action in at least two separate meetings open 12 to the public. 13 Cal. Civ. Code § 1670.9(d) (emphasis added). 14 Plaintiff is a private company that owns and operates two dedicated Immigration and 15 Customs Enforcement (“ICE”) detention facilities in California: (1) the Mesa Verde ICE 16 Processing Center (“Mesa Verde”); and (2) the Adelanto ICE Processing Center (“Adelanto”). 17 (ECF No. 1 at 8.) Plaintiff also owns three nearby facilities which it previously operated as 18 private prisons under contract with the California Department of Corrections and Rehabilitation: 19 (1) the Desert View Modified Community Correctional Facility (“MCCF”) (“Desert View”), 20 located in Adelanto, California; (2) the Central Valley MCCF (“Central Valley”), located in 21 McFarland, California; and (3) Golden State MCCF (“Golden State”), also located in McFarland, 22 California. (Id. at 9–11.) Plaintiff seeks to operate Desert View as an annex to Adelanto and to 23 operate Central Valley and Golden State as annexes to Mesa Verde. (Id.) To that end, Plaintiff 24 contracted with ICE to begin operating Desert View, Central Valley, and Golden State as 25 immigration detention facilities through 2034. (Id.) However, Plaintiff’s existing conditional use 26 permits (“CUPs”) from the cities of Adelanto and McFarland do not allow Plaintiff to house male 27 and female detainees in those facilities. (Id. at 12.) Plaintiff thus applied to both cities for CUP 28 modifications. (Id.) 1 In accordance with § 1670.9(d), the Adelanto and McFarland planning commissions 2 noticed and held two public hearings each on Plaintiff’s applications for CUP modifications. (Id. 3 at 13–14.) The City of McFarland issued its first public notice on January 10, 2020, and the City 4 of Adelanto issued its first public notice on January 11, 2020. (Id. at 13.) Therefore, pursuant to 5 § 1670.9(d), the soonest the cities could issue the modified CUPs was 180 days after these first 6 public notices, which equated to July 8, 2020, and July 9, 2020, respectively. See Cal. Civ. Code 7 § 1670.9(d). Plaintiff alleges § 1670.9(d)’s two-hearing and 180-day notice requirements cost 8 Plaintiff time, money, and other resources, especially considering the CUP-modification process 9 prior to § 1670.9(d) typically would be completed in less than 90 days. (ECF No. 1 at 14–15.) 10 Plaintiff filed the instant action on March 9, 2020. (Id. at 1.) Plaintiff alleges § 1670.9(d) 11 violates the doctrine of intergovernmental immunity by both discriminating against and directly 12 regulating the federal government. (Id. at 16–18.) Plaintiff seeks a declaration that § 1670.9(d) 13 “violates the Supremacy Clause of the United States Constitution and is unconstitutional as 14 applied to [Plaintiff].” (Id. at 17.) Plaintiff also seeks injunctive relief prohibiting Defendants 15 from enforcing § 1670.9(d) against Plaintiff. (Id.) 16 On March 16, 2020, Plaintiff filed a motion for preliminary injunction. (ECF No. 16.) On 17 May 28, 2020, Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 18 (“Rule”) 12(b)(1) and 12(b)(6). Because the Court intends to grant Defendant’s motion to 19 dismiss based on mootness under Rule 12(b)(1), the Court need not and does not discuss the 20 parties’ remaining arguments. 21 II. STANDARD OF LAW 22 A Rule 12(b)(1) motion challenges a federal court’s jurisdiction to decide claims alleged 23 in the complaint. Fed. R. Civ. P. 12(b)(1); see also id. at 12(h)(3) (“If the court determines at any 24 time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). “The 25 jurisdiction of federal courts depends on the existence of a ‘case or controversy’ under Article III 26 of the Constitution.” Pub. Utils. Comm’n v. Fed. Energy Regulatory Comm’n, 100 F.3d 1451, 27 1458 (9th Cir. 1996) (quoting GTE Cal., Inc. v. FCC, 39 F.3d 940, 945 (9th Cir. 1994)). An 28 actual case or controversy must be live at all times during a particular litigation, not simply on the 1 date the action is initiated. Id. Accordingly, under the jurisdictional doctrine of mootness, “[i]f 2 an action or a claim loses its character as a live controversy, then the action or claim becomes 3 ‘moot,’ and [a reviewing court] lack[s] jurisdiction to resolve the underlying dispute.” Doe v. 4 Madison Sch. Dist. No. 321, 177 F.3d 789, 797–98 (9th Cir. 1999) (en banc). 5 There is an exception to the mootness doctrine in cases that are “capable of repetition, yet 6 evading review.” Murphy v. Hunt, 455 U.S. 478, 482 (1982). This exception applies when: (1) 7 the duration of the challenged action is too short to allow full litigation before it ceases; and (2) 8 there is a reasonable expectation that the plaintiff will be subjected to the same action again. Id. 9 As to the second prong, recurrence of the challenged action must not be too remote or 10 speculative. Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122–23 (1974); see also Murphy, 11 455 U.S. at 482 (“a mere physical or theoretical possibility” of recurrence is insufficient . . . 12 [otherwise] “virtually any matter of short duration would be reviewable”). Instead, “there must 13 be a ‘reasonable expectation’ or a ‘demonstrated probability’ that the same controversy will recur 14 involving the same complaining party.” Murphy, 455 U.S. at 482. 15 III. ANALYSIS 16 Defendants argue the Court should dismiss this action because Plaintiff’s claims are now 17 moot. (ECF No. 23 at 11.) Defendants contend § 1670.9(d) no longer prevents the cities of 18 McFarland or Adelanto from issuing Plaintiff’s modified CUPs for the Desert View, Golden 19 State, and Central Valley facilities because the 180-day notice period passed as of July 10, 2020. 20 (Id.) Defendants further contend that the “capable of repetition, yet evading review” exception to 21 the mootness doctrine does not apply because it is too remote and speculative that Plaintiff would 22 need to obtain another permit from a local government in California subject to § 1670.9(d). (Id. 23 at 12.) Put simply, Defendants argue Plaintiff will already have the permits needed to lawfully 24 operate by the time this matter is heard and there is no “reasonable expectation or demonstrated 25 possibility” that the same controversy will occur for Plaintiff in the future. (Id.) 26 In opposition, Plaintiff argues the “capable of repetition, yet evading review” exception 27 applies to this case. (ECF No. 25 at 5.) First, Plaintiff argues the 180-day delay in the issuance 28 of a permit is too short to be litigated prior to its cessation or expiration. (Id.) Second, Plaintiff 1 argues there is a reasonable expectation that it will be subjected to § 1670.9(d)’s requirements 2 again. (Id.) As to the second prong, Plaintiff contends § 1670.9(d) is not necessarily limited to 3 permits sought for constructing a new building or reusing an existing building to house or detain 4 noncitizens for civil immigration proceedings. (Id. at 6.) Rather, Plaintiff argues “[§]1670.9(d) 5 can reasonably be interpreted to apply to all future permit applications relating to [Plaintiff’s] ICE 6 detention facilities.” (Id. at 6–7 (emphasis in original).) Plaintiff thus argues § 1670.9(d) will 7 continue to apply to Plaintiff in the future each time it seeks any permit modification related to its 8 immigration facilities in California. (Id.) Plaintiff also asserts “it is reasonable to expect that the 9 Federal Government will request amendments to one or both contracts [with Plaintiff] at some 10 point in the next fifteen years” and “it is reasonable to expect that such amendments will require 11 [Plaintiff] to seek modifications of its CUPs, as [Plaintiff] has had to do for its immigration 12 detention facilities in California in the past.” (Id. at 7 (citing ECF No. 1 at ¶ 78).) 13 In reply, Defendants contend Plaintiff’s interpretation of § 1670.9(d) is unreasonable. 14 (ECF No. 26 at 7.) Defendants argue the text of § 1670.9(d) clearly applies only to permits for 15 the building of facilities or reuse of existing buildings — not to buildings that already exist and 16 house or detain noncitizens. (Id.) Defendants assert Plaintiff has submitted no evidence that 17 there is a reasonable, non-speculative expectation that Plaintiff will seek a permit to either “build” 18 or “reuse” an existing non-immigration detention facility for the purposes of immigration 19 detention in the future. (Id.) 20 At the outset, it is undisputed that the first prong of the “capable of repetition, yet evading 21 review” exception is met. Plaintiff is challenging § 1670.9(d)’s 180-day notice period, which is 22 too short in duration to be litigated prior to its cessation or expiration. See Murphy, 455 U.S. at 23 482. The parties dispute only the second prong: whether there is a reasonable expectation 24 Plaintiff will be subjected to the challenged action again. Id. The Court agrees with Defendants 25 that there is not a sufficient showing of recurrence to meet the second prong. The controversy at 26 issue is the delay and associated burdens § 1670.9(d) caused Plaintiff in obtaining CUP 27 modifications to convert three existing facilities into immigration detention facilities. Plaintiff 28 provides no argument or evidence to suggest that it will seek similar CUP modifications in the 1 | future. Plaintiff instead interprets § 1670.9(d) as applying to any permitting action and vaguely 2 || argues it is reasonable to expect the federal government will request amendments to its contracts 3 | with Plaintiff sometime within the next 15 years, which in turn will require Plaintiff to seek CUP 4 | modifications that will trigger §1670.9(d). (ECF No. 25 at 7.) Plaintiffs arguments lack any 5 || specificity and are purely theoretical, speculative, and remote. This is insufficient to satisfy the 6 || second prong of the capable of repetition, yet evading review” exception. Super Tire Eng’g Co., 7 | 416U;S. 115 at 122-23; Murphy, 455 U.S. at 482. 8 In sum, the Complaint indicates the purpose of this lawsuit was to obtain injunctive and 9 | declaratory relief based on § 1670.9(d)’s 180-day notice and two-hearing requirements as applied 10 | to Plaintiff as it sought specific CUP modifications. It is undisputed that both of § 1670.9(d)’s 11 | requirements have been met for the controversy at issue. Therefore, § 1670.9(d) no longer 12 | applies, and the Court is not persuaded that there is a “reasonable expectation or demonstrated 13 | possibility” Plaintiff will be subject to § 1670.9(d) again based on the current record. As such, 14 | this action is moot. Doe, 177 F.3d at 797-98. The Court thus GRANTS Defendants’ motion to 15 | dismiss and DISMISSES this action for lack of subject matter jurisdiction. Jd. 16 IV. CONCLUSION 17 For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss (ECF No. 18 | 24), DISMISSES this action in its entirety, and DENIES as moot Plaintiff's Motion for 19 | Preliminary Injunction (ECF No. 16). The Clerk of Court is directed to close the case. 20 IT IS SO ORDERED. 21 22 | DATED: January 31, 2022 23 { J) /) 24 “ ! } haku 25 Troy L. Nuhlep> 26 United States District Judge 27 28