Montoya v. Board of County Commissioners for Cibola County et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
JULIAN MONTOYA,
Plaintiff,
v. Civ. No. 25-530 GJF/JMR
BOARD OF COUNTY COMMISSIONERS
FOR CIBOLA COUNTY, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Remand, filed July 22, 2025.
Dkt. No. 13. The Motion is fully briefed. See Dk. No. 16 (response); Dkt. No. 20 (reply). As
explained herein, the Court lacks federal officer removal jurisdiction over this case under 28
U.S.C. § 1442(a)(1). Accordingly, the Court GRANTS Plaintiff’s Motion and REMANDS this
case to the Thirteenth Judicial District Court, Cibola County, New Mexico for lack of subject
matter jurisdiction.
I. BACKGROUND
This case arises from a May 27, 2024 incident at Cibola County Correctional Center
(“CCCC”), a detention facility owned and operated by CoreCivic. Plaintiff, a federal detainee
housed at CCCC pursuant to a contract between Cibola County and the U.S. Marshals Service
(“USMS”), alleges that an unqualified corrections officer left unlocked the cell door of two other
inmates in Plaintiff’s pod (the “attackers”) or, alternatively, that someone from CCCC’s
administrative office remotely unlocked the cell that housed the attackers. Dkt. No. 1-1 ¶¶ 43–44.
Plaintiff contends that the attackers, armed with homemade weapons and wearing homemade body
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armor, escaped from their cell and attacked and subdued the unqualified corrections officer. Id.
¶¶ 45–46. According to Plaintiff, the attackers then used the officer’s keys to unlock Plaintiff’s
cell, where they attacked Plaintiff and his cellmate for nearly ten minutes before other corrections
officers intervened. Id. ¶¶ 50–56. Plaintiff asserts state law claims for negligence and violations of
the New Mexico Tort Claims Act, N.M.S.A. 1978 §§ 41-4-1–41-4-27, and the New Mexico Civic
Rights Act, N.M.S.A. 1978 §§ 41-4A-1–41-4A-13, against the Board of County Commissioners
for Cibola County (“the County”) and various corporate entities that collectively make up the
private CoreCivic defendants that operate CCCC (“CoreCivic”). See Dkt. No. 1-1.
In addition to the contracts appended to and incorporated into Plaintiff’s Complaint (see
Dkt. No. 11, Ex. 1–2), both sides have submitted extrinsic evidence in support of their positions
on the jurisdictional question before the Court, including various contracts and publications. See,
e.g., Dkt. No. 13, Ex. 1 (Inmate Housing Agreement); Dkt. No. 13, Ex. 2 (Oct. 2016 Management
Agreement); Dkt. No. 13, Ex. 3 (Oct. 2017 USMS IGA with Amendment); Dkt. No. 16, Ex. 1
(Oct. 2019 Modification of Oct. 2017 USMS IGA); Dkt. No. 20, Ex. 5 (2009 Contract between
CoreCivic and DOJ for housing federal detainees at NEOCC); Dkt. No. 20, Ex. 6 (Complaint in
Lind v. Ne. Ohio Corr. Ctr., No. 4:21CV2165, 2022 WL 429453 (N.D. Ohio Jan. 7, 2022)); Dkt.
No. 20, Ex. 7 (OIG’s March 2023 “Review of Concerns Related to the USMS’s Implementation
of Executive Order 14006”); Dkt. No. 20, Ex. 8 (GAO’s July 2024 Report identifying “Actions
Needed to Better Identify and Address Detention Condition Concerns”). Neither side objects to
evidence presented by the other side, and because the Court is faced with a factual challenge to
subject matter jurisdiction, it may consider such extrinsic evidence to resolve the Motion before
it. See Graff v. Aberdeen Enters., II, Inc., 65 F.4th 500 (10th Cir. 2023) (reasoning that when the
movant attacks the factual basis for subject matter jurisdiction, the court may consider evidence to
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resolve the jurisdictional facts); Bennett v. MIS Corp., 607 F.3d 1076, 1087 & n.11 (6th Cir. 2010)
(considering the defendant federal contractor’s contracts with the FAA to determine applicability
of § 1442(a)(1), explaining that “[w]hen a district court’s subject matter jurisdiction is in question,
it is empowered to review extra-complaint evidence and resolve factual disputes”) (citation
omitted).
Although the USMS assumes responsibility for prisoners charged with federal offenses, it
does not own or operate its own detention facilities; instead, prisoners in USMS custody are
detained in state, local, and private detention facilities as well as in Federal Bureau of Prison
facilities. See https://www.usmarshals.gov/what-we-do/prisoners/operation [https://perma.cc/VQ
P2-VDHC] (last visited Mar. 12, 2026).1 In the present case, Plaintiff was detained at CCCC
pursuant to an Intergovernmental Agreement between the USMS and the County (“USMS IGA”).2
See Dkt. No. 13, Ex. 3. That USMS IGA was preceded by an October 28, 2016 Management
Agreement between the County and CoreCivic.3 See Dkt. No. 13, Ex. 2. According to the
Management Agreement, the County “desire[d] [CoreCivic] to house federal inmates” at CCCC
and provided that “[f]or every federal inmate accepted into custody [there], Core Civic [sic] shall
1 The Court is permitted to take judicial notice of facts contained on government websites. See Fed. R. Evid. 201(b);
New Mexico ex rel. Richardson v. BLM, 656 F.3d 683, 702 & n. 22 (10th Cir. 2009) (taking judicial notice of facts on
government websites and observing, “[i]t is not uncommon for courts to take judicial notice of factual information
found on the world wide web.”).
2 Plaintiff submitted an October 19, 2017 IGA between the USMS and the County (Dkt. No. 13, Ex. 3), which both
sides reference as the operative agreement at the time of the events giving rise to Plaintiff’s claims. See Dkt. No. 13
at 3; Dkt. No. 16 at 1–2. In addition, Defendants submitted an excerpt from a September 27, 2019 modification of
that IGA in which the USMS and the County agreed that USMS detainees would be housed and inspections permitted
in accordance with the Federal Performance Based Detention Standards, rather than the Core Detention Standards
referenced in the October 19, 2017 iteration of the IGA. See Dkt. No. 16, Ex. 1, at 2–3. The Court refers to the 2017
and 2019 IGAs collectively as “the USMS IGA.”
3 When it entered into the 2016 Management Agreement, CoreCivic operated under the name Corrections Corporation
of America. See Dkt. No. 13, Ex. 2. The company has since rebranded as CoreCivic. See
https://www.corecivic.com/news/corrections-corporation-of-america-rebrands-as-corecivic [https://perma.cc/S8VK-
GJMS] (last visited Mar. 12, 2026).
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provide services in compliance with the terms of the applicable [IGA], which shall be appended
to and incorporated into [the Management] Agreement.” Id. at 1. The Management Agreement
also memorialized the County’s intent to “enter into an Intergovernmental Service Agreement . . .
with the United States Immigration and Customs Enforcement (ICE)” and provided that the
County may also “enter other/additional [IGAs] for services to be provided at [CCCC], subject to
[CoreCivic’s] advance written approval.” Id. The USMS IGA, which the County and the USMS
entered into a year later, was one such “additional IGA” that, according to the Management
Agreement’s terms, was incorporated into the Management Agreement.
The USMS IGA authorized the USMS to house federal detainees with the County at
CCCC. Dkt. No. 13, Ex. 3 at 3. Under the terms of the USMS IGA, the County agreed to “accept
and provide for the secure custody, safekeeping, housing, subsistence and care of Federal detainees
in accordance with all state and local laws, standards, regulations, policies, and court orders
applicable to the operation of [CCCC]” and in a manner consistent with federal law and the Federal
Performance Based Detention Standards (FPBDS) “and/or any other standards required by an
authorized agency whose detainees are housed by [the County].” Id.; Dkt. No. 16, Ex. 1 at 3.
FPBDS are standards “designed for use in reviewing non-federal facilities that house federal
prisoners to ensure these facilities are safe, humane, and protect prisoners[’] statutory and
constitutional rights.” See https://www.usmarshals.gov/what-we-do/prisoners/operation/custody-
detention/federal-performance-based-detention-standards [https://perma.cc/QCE5-LHAF] (last
visited March 12, 2026).
The USMS IGA specified that the “Federal Government shall have access to the Facility
and to the Federal detainees housed there, and to all records” related to the USMS IGA. Dkt. No.
13, Ex. 3 at 3. Relatedly, the County agreed to permit “periodic inspections by Federal Government
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inspectors, to include approved Federal contractors, in accordance with the [FPBDS] required by
all of the Federal authorized agency users whose detainees may be housed pursuant to the [USMS
IGA].” Dkt. No. 13, Ex. 3 at 12; Dkt. No. 16, Ex. 1 at 2. In terms of medical services, the USMS
IGA obligated the County to “provide Federal detainees with the same level and range of care
inside [CCCC] as that provided to state and local detainees.” Dkt. No. 13, Ex. 3, at 4; Dkt. No. 16,
Ex. 1 at 2–3. In addition, the IGA provided that medical care for federal detainees was to be
provided “in accordance with the provisions of USMS, Publication 100-Prisoner Health Care
Standards . . . and in compliance with the [FPBDS] or those standards which may be required by
any other authorized agency user.” Dkt. No. 13, Ex. 3, at 5; Dkt. No. 13, Ex. 1, at 2–3. The IGA
required the County to “notify the Federal Government of any activity by a Federal detainee which
would likely result in litigation or alleged criminal activity,” to include escape, attempted escape,
assault, death, or a medical emergency. Dkt. No. 13, Ex. 3 at 8. In exchange for the County’s
agreement to house USMS detainees at CCCC, the USMS agreed to pay the County at a specified
per diem rate for each federal detainee. Id. at 10–11.
In an Amendment to the October 19, 2017 USMS IGA, entered the same day, the USMS
and the County further agreed “that overall management and operation of the housing of the
Federal Detainees subject to this Agreement is contracted by the County to Core Civic [sic] under
the County’s agreement with Core Civic [sic].” Id. at 16. CoreCivic was not identified as a party
to, and did not sign, the IGA Amendment, which provided that “[t]he [USMS] hereby grants its
consent to the contracting” between the County and CoreCivic. Id. The Amendment described the
County as a “passthrough entity, with its contract with Core Civic [sic].” Id. at 15.
On the basis of the pass-through arrangement consisting of the Management Agreement,
the USMS IGA, and its Amendment, Defendants filed their Notice of Removal (Dkt. No. 1) on
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June 4, 2025, alleging that CoreCivic Defendants are eligible for removal under 28 U.S.C.
§ 1442(a)(1), the federal officer removal statute.4 Dkt. No. 1 ¶ 8, 9, 33. In support, Defendants rely
on Lind v. Northeast Ohio Correctional Center, No. 4:21CV2165, 2022 WL 429453, at *2 (N.D.
Ohio Jan. 7, 2022). Id. ¶ 33. There, the court determined that CoreCivic, which operated Northeast
Ohio Correctional Center (“NEOCC”) – where the USMS-detainee plaintiff was housed – properly
invoked § 1442(a)(1) to remove that case to federal court. Lind, 2022 WL 429453, at *1–2.
For his part, Plaintiff insists that removal under § 1442(a)(1) is improper. Among other
things, he points to a publication by the Department of Justice’s (“DOJ’s”) Office of the Inspector
General (“OIJ”), which was released a year after Lind was decided. See Dkt. No. 20, Ex. 7.5 That
publication, entitled “Review of Concerns Raised Related to the [USMS’s] Implementation of
Executive Order 14006,” discussed the USMS’s use of NEOCC in light of a 2021 Executive Order
issued by then-President Biden which sought to phase out reliance on privately-operated prisons.
See Dkt. No. 20, Ex. 7. Before it was revoked by President Trump in 2025, Executive Order 14006
prohibited the DOJ from renewing contracts with private facilities. Executive Order 14006, 86 FR
7483, 2021 WL 289533 (Jan. 26, 2021), revoked by Executive Order 14148, 90 FR 8237, 2025
WL 305765 (Jan. 20, 2025). The OIJ’s March 2023 publication observed that, in response to
Executive Order 14006, the USMS replaced its expiring direct contract with CoreCivic to house
federal detainees at NEOCC with a pass-through IGA with a local government entity (Mahoning
County) that in turn contracted with CoreCivic to continue using NEOCC for USMS detainees.
4 Defendants assert that because the Court has federal officer jurisdiction over claims against CoreCivic, it has
supplemental jurisdiction over Plaintiff’s remaining claims. Dkt. No. 1 ¶ 34 (citing 28 U.S.C. § 1367(a)).
5 The OIJ’s publication, provided to the Court as Exhibit 7 to Plaintiff’s reply, is also available on the OIG’s website.
See https://oig.justice.gov/reports/review-concerns-raised-related-united-states-marshals-services-implementation-
executive [https://perma.cc/B4HK-UWM6] (last visited Mar. 12, 2026).
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Dkt. No. 20, Ex. 7 at 2. As the OIG described it, the restructure of the NEOCC contract as a pass-
through IGA meant that “USMS was no longer contracting with a private entity[, as] the IGA
inserted a third party between the USMS and the contractor.” Id. at 3. The OIG outlined drawbacks
of this pass-through IGA structure for housing federal detainees:
The IGA . . . decreased the USMS’s control over [NEOCC’s] conditions of
confinement. The USMS’s Prisoner Operations Division has the ability to exercise
considerable influence and control over the management of its private contract
detention facilities. However, under IGAs, the state or local government manages
the services provided and the day-to-day conditions of confinement consistent with
applicable laws and regulations. IGA facility agreements neither grant the USMS
authority to manage the operations or policies of the facility, nor impose
consequences if the USMS’s requests and recommendations are not implemented.
Id. at 5. The OIG further observed that “specific contractual penalties for noncompliance that were
present in the [pre-Executive Order, direct] contract arrangement were eliminated in the IGA” and
that “[t]he only remedy for noncompliance [was] for the USMS to reduce or cease its use of the
NEOCC.” Id. The OIG concluded that the USMS’s IGA “compromise[d] USMS control over
detainee handling.”6 Id. at 6.
Plaintiff notes that the U.S. Government Accountability Office (“GAO”) has likewise
criticized the reduced oversight and supervision by the USMS over private facilities subject to
pass-through IGAs. Dkt. No. 20 at 8. In its July 2024 Report to Congress entitled “U.S. Marshals
Serve: Actions Needed to Better Identify and Address Detention Condition Concerns,”7 the GAO
opined that USMS policies governing pass-through IGA facilities omit “key elements” and involve
6 The OIG also had other criticisms of the pass-through IGA, to include a significant cost increase for the USMS. See
Dkt. No. 20, Ex. 7 at 5.
7 The GAO’s publication, provided to the Court as Exhibit 8 to Plaintiff’s reply, is also available on the GAO’s website.
See https://www.gao.gov/products/gao-24-106348 [https://perma.cc/CX86-4XM9] (last visited Mar. 12, 2026).
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less comprehensive audits and inspections as compared to those of private facilities with which
the USMS contracts directly. See Dkt. No. 20, Ex. 8, at 8 n. 23, 11–12.
II. APPLICABLE LAW
A party removing a case to federal court must “affirmatively establish” that federal
jurisdiction exists. McPhail v. Deere & Co., 529 F.3d 947, 955–56 (10th Cir. 2008). “Because the
jurisdiction of federal courts is limited, there is a presumption against [federal court] jurisdiction,
and the party invoking federal jurisdiction bears the burden of proof.” Merida Delgado v.
Gonzales, 428 F.3d 916, 919 (10th Cir. 2005) (internal quotation omitted).
Federal courts have subject-matter jurisdiction over claims that are properly removed under
28 U.S.C. § 1442(a)(1), the federal officer removal statute. See Mesa v. California, 489 U.S. 121,
136 (1989). That statute permits removal of a state court civil action “that is against or directed to
. . . any officer (or any person acting under that officer) of the United States or of any agency
thereof . . . for or relating to any act under color of such office.” 28 U.S.C. § 1442(a)(1). “The
statute’s ‘basic purpose’ is to protect against the interference with federal operations that would
ensue if a state were able to arrest federal officers and agents acting within the scope of their
authority and bring them to trial in a state court for an alleged state-law offense.” Bd. of Cnty.
Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238, 1251 (10th Cir. 2022)
(citation omitted) (discussing the purpose of § 1442(a)(1) in the context of private energy
companies’ removal of a civil case). Unlike other removal statutes, the federal officer removal
statute should “be liberally construed to give full effect to [its] purpose.”8 Colorado v. Symes, 286
8 Removal statutes other than § 1442(a)(1) “are to be strictly construed, and all doubts are to be resolved against
removal.” Fajen v. Found. Rsrv. Ins. Co., Inc., 683 F.2d 331, 333 (10th Cir. 1982) (citations omitted).
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U.S. 510, 517 (1932) (emphasis added). Also unlike other removal statutes, an order remanding a
case removed pursuant to the federal officer removal statute is appealable. See 28 U.S.C. § 1447(d).
Private defendants may assert federal officer jurisdiction under § 1442(a)(1) “if they can
show (1) they acted under the direction of a federal officer, (2) the claim has a connection or
association with the government-directed conduct, and (3) they have a colorable federal defense
to the claim or claims.” Suncor Energy, 25 F.4th at 1251. A removing private defendant retains
the burden of establishing jurisdiction under § 1442(a)(1) by a preponderance of the evidence. Id.
at 1250.
III. DISCUSSION
A. The Parties’ Arguments
In his Motion to Remand, Plaintiff contends that CoreCivic’s actions do not fall within the
purview of the federal officer removal statute because CoreCivic was not contractually bound to
the USMS. Dkt. No. 13 at 3. In Plaintiff’s view, three contracts are relevant to the Court’s
§ 1442(a)(1) inquiry: (1) the July 2021 Inmate Housing Agreement between the County and
CoreCivic9 (Dkt. No. 20, Ex. 1); (2) the October 2016 Management Agreement between the
County and CoreCivic (Dkt. No. 20, Ex. 2); and (3) the October 2017 IGSA between the County
and the USMS (the “USMS IGSA”) (Dkt. No. 20, Ex. 3). Dkt. No. 13 at 3. Plaintiff emphasizes
that none of these contracts were between CoreCivic and the USMS. Id. It follows, he suggests,
that CoreCivic is not a federal contractor in the context of this case. Id. at 9. Taking the position
that “federal contractor status [i]s a baseline requirement” for a private company to remove a case
pursuant to § 1442(a)(1), Plaintiff maintains that CoreCivic cannot establish federal officer
9 The Inmate Housing Agreement, on its face, relates to County detainees, not federal detainees, and its relevance to
the present inquiry before the Court is therefore unclear.
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removal jurisdiction here in the absence of a contract with the USMS. Id. at 5–6. Relatedly,
Plaintiff contends that the USMS does not control or direct CoreCivic’s activities at CCCC to the
extent that CoreCivic could be said to be “acting under” the USMS. Id. at 7; Dkt. No. 20 at 5.
For their part, Defendants argue that neither § 1442(a)(1) nor binding precedent require a
direct contractual relationship for a private entity to avail itself of the statute’s forum protections.
Dkt. No. 16 at 3–4. In addition, Defendants contend that both CoreCivic and the County are federal
contractors for purposes of § 1442(a)(1) by virtue of the Management Agreement’s incorporation
of the USMS IGA and its Amendment. Id. at 6. Defendants insist that despite the indirect, pass-
through IGA arrangement under which CCCC is operated, the USMS still maintains “operational
oversight and control over the care and management of [USMS] detainees” held at CCCC, as the
IGA mandates “compliance with a comprehensive set of detention standards.” Id. at 5. Moreover,
by assisting the USMS in carrying out its duty to provide for the safe and secure confinement of
USMS detainees, Defendants insist that CoreCivic is “acting under” the USMS in providing a
service the USMS would otherwise have to provide. Id. at 11–12.
B. Analysis
Under Tenth Circuit law, private defendants like CoreCivic may assert federal officer
jurisdiction under 28 U.S.C. § 1442(a)(1) “if they can show (1) they acted under the direction of a
federal officer, (2) the claim has a connection or association with the government-directed conduct,
and (3) they have a colorable federal defense to the claim or claims.” Suncor Energy, 25 F.4th at
1251. Conceding that CoreCivic can likely satisfy the second and third prongs, Plaintiff insists it
cannot demonstrate the first. Dkt. No. 20 at 1. Thus, for present purposes, removability pursuant
to § 1442(a)(1) turns on whether CoreCivic “acted under the direction of” the USMS.
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The Tenth Circuit addressed application of the “acting under” prong to private companies
at some length in Suncor Energy. To begin, it noted that “[t]he statutory phrase ‘acting under’
describes ‘the triggering relationship between a private entity and a federal officer’” for purposes
of § 1442(a)(1). Suncor, 25 F.4th at 1251 (citation omitted). Describing “acting under” as “broad
but ‘not limitless[,]’” the Tenth Circuit explained:
In this context, “under” describes a relationship between private entity and federal
superior typically involving “subjection, guidance, or control.” Thus, a “private
person’s ‘acting under’ must involve an effort to assist, or to help carry out, the
duties or tasks of the federal superior.” This “help or assistance necessary to bring
a private person within the scope of the statute does not include simply complying
with the law [ ] . . . even if the regulation is highly detailed and even if the private
firm’s activities are highly supervised and monitored.” Rather, “there must exist a
‘special relationship’ between” the private firm and the federal superior.”
Id. (internal citations omitted). To flesh out the requisite “special relationship,” the Tenth Circuit
drew upon the United States Supreme Court’s analysis in Watson v. Philip Morris Cos., Inc., 551
U.S. 142 (2007), observing that the Court there “unanimously rejected [a private company’s]
attempt to equate the sufficiency of ‘close supervision’ over private contractors to ‘intense
regulation’ of firms who are not operating under a governmental contract.” Suncor Energy, 25
F.4th at 1252 (citing Watson, 551 U.S. at 153). The Tenth Circuit emphasized that, to satisfy the
“acting under” prong, the assistance provided by the private entity must go “beyond simple
compliance with the law” and must assist the federal officer in “fulfill[ing] other basic
governmental tasks.” Id. (citing Watson, 551 U.S. at 153).
To illustrate the types of contracts between federal superiors and private companies that
constitute “sufficient special relationship[s]” for § 1442(a)(1) removal, the Tenth Circuit (and the
Supreme Court before it) pointed to, as the paradigmatic example, the wartime defense contract
between Dow Chemical and the Department of Defense (“DOD”) for the production of Agent
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Orange for use during the Vietnam War. Suncor Energy, 25 F.4th at 1252 (discussing Winters v.
Diamond Shamrock Chem. Co., 149 F.3d 387, 398 (5th Cir. 1998), overruled on other grounds by
Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020)); Watson, 551 U.S. at 153–
54 (citing Winters, 149 F.3d at 387). Significantly, in Winters, the DOD gave Dow Chemical
detailed specifications as to the make-up, packaging, and delivery of Agent Orange and maintained
ongoing supervision over its production and delivery. Winters, 149 F.3d at 400. And as the
Supreme Court observed in Watson, by producing Agent Orange, Dow Chemical “performed a job
that, in the absence of a contract with a private firm, the [g]overnment itself would have had to
perform.” Watson, 551 U.S. at 154.
In light of the Supreme Court’s analysis in Watson, and given its reliance on Winters, the
Tenth Circuit reasoned in Suncor Energy that a private company has a sufficiently special
relationship with a federal agency for purposes of § 1442(a)(1) if it:
go[es] beyond mere compliance with contractual terms, even if complex, and
agree[s] to help carry out the duties or tasks of the federal superior under that
superior’s strict guidance or control. And this closely supervised work must help
federal officers fulfill basic government needs, accomplish key government tasks,
or produce essential government products—that is, it must stand in for critical
efforts the federal superior would need to undertake itself in the absence of a private
contract.10
Suncor Energy, 25 F.4th at 1253. In contrast to the DOD contract in Winters, the Tenth Circuit
determined that the removing private energy companies in Suncor Energy did not establish federal
officer removal jurisdiction. The companies’ federal contracts, which were leases administered by
the Department of Interior (“DOI”), permitted extraction of fossil fuels from the country’s outer
continental shelf but did not obligate the energy company private lessees “to tailor their fuel
10 Alternatively, the Tenth Circuit indicated that “the ‘acted under’ element may be established through the explicit
contractual delegation of legal authority to act on the federal superior’s behalf.” Suncor Energy, 25 F.4th at 1253.
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production to detailed government specifications aimed at satisfying pressing federal needs.” Id.
Moreover, because the DOI did not control the manner in which the energy companies drilled for
oil or gas, nor direct how much fossil fuel they could sell, the leases did not constitute the type of
“close supervision” necessary to bring the energy companies within the meaning of § 1442(a)(1).
Id. at 1253. Notably, the Tenth Circuit reached this conclusion despite the leases’ requirement that
the energy companies drill in accordance with “federally approved exploration, development, and
production plans and conditions” and even though DOI officials reserved the right to obtain
“prompt access” to the private lessees’ facilities and records. See id. at 1247–48.
In the same vein, the Supreme Court determined in Watson that private cigarette-
manufacturing firms were not “acting under” the Federal Trade Commission (“FTC”) when they
tested and advertised the tar and nicotine levels in cigarettes in compliance with detailed
regulations from the FTC. Watson, 551 U.S. at 151–54. The Court emphasized that the federal
assistance necessary to bring a private company within the scope of § 1442(a)(1) requires more
than mere compliance with or acquiescence to the law. Id. at 151–52. As the Supreme Court put
it, “[a] private firm’s compliance (or noncompliance) with federal laws, rules, and regulations does
not by itself fall within the scope of the statutory phrase ‘acting under’ a federal ‘official.’” Id. at
153.
From the analyses in Suncor Energy and Watson, Plaintiff derives a “baseline requirement”
of “federal contractor status” for application of § 1442(a)(1). Dkt. No. 13 at 5. Indeed, he contends
that the “seminal cases” cited by the parties, including Suncor Energy, specifically analyze the
details of a given government contract, and the parties’ performance thereunder, because such a
contract is how the federal agency exerts control over the private entity. Dkt. No. 20 at 2. In
response, Defendants advance two related arguments: (1) that § 1442(a)(1) does not require a
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direct contractual relationship between the private entity and the federal agency; and (2) that both
CoreCivic and the County are federal contractors by virtue of the USMS IGA Amendment and
the Management Agreement. Dkt. No. 16 at 6.
As to Defendants’ first argument, the Court agrees that neither § 1442(a)(1) nor binding
precedent have explicitly required a direct contractual relationship between the federal agency or
official and the person or entity “acting under” that federal agency or official. But the reverse is
also true. That is, the parties have not pointed to any binding authority expressly holding that a
direct contractual relationship is not a prerequisite to application of § 1442(a)(1). With the
exception of Watson, each of the cases referenced by the parties involved direct contracts by
federal agencies and the private companies attempting to establish federal officer removal
jurisdiction. See, e.g., Suncor Energy, 25 F.4th at 1253–54 (analyzing private energy companies’
leases with the DOI); Winters, 149 F.3d at 387 (discussing a chemical company’s contract with
the DOD); Bennett, 607 F.3d at 1082 (considering mold remediation firms’ contracts with the
FAA). And notably, the Supreme Court declined to authorize federal officer removal in Watson,
where there was no contract in place between the private cigarette manufacturers and the FTC.
Watson, 551 U.S. at 156 (reasoning that there was “no evidence of any delegation of legal authority
from the FTC” to the cigarette manufacturers and no “evidence of any contract, any payment, any
employer/employee relationship, or any principal/agent arrangement”); see also Suncor Energy,
25 F.4th at 1252 (gleaning from Watson that “intense regulation of firms who are not operating
under a governmental contract” does not equate to sufficiently “close supervision” for the private
firm to invoke § 1442(a)(1) (emphasis added)). At minimum, therefore, the existence of a contract
between a federal agency and a private entity is an important factor in determining whether the
private entity is “acting under” the federal agency for purposes of § 1442(a)(1). See Suncor Energy,
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25 F.4th at 1252–53 (discussing the types of contracts that constitute a “sufficient special
relationship” and emphasizing that such a special relationship “go[es] beyond mere compliance
with contractual terms, even if complex”) (emphasis added).
It appears that neither the Tenth Circuit nor the Supreme Court have had occasion to weigh
in on § 1442(a)(1)’s application to an indirect, pass-through contractual relationship involving a
federal agency and a private entity. And in this Court’s view, the purposes of § 1442(a)(1) may be
served by permitting federal officer removal even absent contractual formalities, so long as the
federal agency exercises functional control over the private entity through some indirect
contractual relationship. See Symes, 286 U.S. at 517 (reasoning that the federal officer removal
statute should “be liberally construed to give full effect to [its] purpose” (emphasis added)). Given
the Court’s reluctance to exalt form over substance, the Court does not read Watson and Suncor
Energy to necessarily and in all cases foreclose application of federal officer removal in the
absence of a direct government contract. Instead, the Court examines the various agreements that
culminated in Plaintiff’s detention at CCCC to determine whether they collectively render
CoreCivic the functional equivalent of federal contractors “acting under” the USMS in this
context.
First, the October 2016 Management Agreement between the County and CoreCivic
provided that, for federal inmates accepted into CCCC’s custody, Core Civic was to provide
detention services “in compliance with the terms of the applicable [IGA], which shall be appended
to and incorporated into [the Management] Agreement.” Dkt. No. 13, Ex. 2 at 1 (emphasis added).
A year later, the County and the USMS entered into the USMS IGA as well as a same-day
Amendment thereto. The USMS IGA authorized the USMS to house federal detainees at the
CCCC. In exchange for payment at a specified per diem rate per federal detainee, the County
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agreed to provide for the secure custody and care of federal detainees in accordance with state and
local laws and in a manner consistent with federal law, the FPBDS and the USMS Publication
100-Prisoner Health Care Standards. The County also agreed to permit the federal government
access to CCCC and to records pertaining to federal detainees housed therein. In the USMS IGA
Amendment, the County and the USMS agreed that the “overall management and operation of the
housing of the Federal Detainees” under the USMS IGA would be contracted by the County to
CoreCivic under the County’s separate agreement with CoreCivic. Dkt. No. 13, Ex. 3, at 16. The
Amendment further provided that the USMS “consent[ed] to the contracting” between the County
and CoreCivic, and it described the County as a “passthrough entity, with its contract with Core
Civic [sic].” Id. at 15–16.
Plaintiff and Defendants agree that by using a pass-through IGA structure, whereby the
USMS entered into an agreement with the County which, in turn, contracted with CoreCivic, the
USMS bypassed the competitive bidding process that would have otherwise been necessary. See
Dkt. No. 16 at 5; Dkt. No. 20 at 5–6. They disagree, however, as to § 1442(a)(1)’s applicability in
light of the terms and interplay of the Management Agreement, USMS IGA, and USMS IGA
Amendment. Plaintiff first maintains that because there is no singular contract whereby CoreCivic
undertakes contractual obligations to the USMS, CoreCivic is therefore not “acting under” the
USMS and cannot avail itself of § 1442(a)(1)’s forum protections. Second, although Plaintiff
concedes that the detention services CoreCivic performs pursuant to its Management Agreement
with the County are federally regulated, he insists that the USMS does not exert “Watson levels of
direct control and oversight of CoreCivic’s actions.” Dkt. No. 13 at 9. Defendants, on the other
hand, maintain that the Management Agreement’s express incorporation of the USMS IGA
transforms both the County and CoreCivic into federal contractors and compel the conclusion that
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CoreCivic has been performing under the USMS IGA and “acting under” the USMS. Dkt. No. 16
at 6. Defendants further contend that the pass-through IGA implicates § 1442(a)(1) because (1)
CoreCivic acts on behalf of the USMS by carrying out a federal task – the housing and care of
federal detainees – for which the USMS would otherwise bear responsibility if not for the contracts
entered into by the County, the USMS, and CoreCivic (Dkt. No. 16 at 11–12); and (2) the USMS
maintains operational oversight and control over the care and management of USMS detainees at
CCCC despite those detainees being held in a private facility operated by CoreCivic (Dkt. No. 20
at 5).
Putting aside for now whether a direct federal contract is a precondition to federal officer
removal jurisdiction, the Court understands Watson and Suncor Energy, when read together, to at
least clarify that § 1442(a)(1) removal requires a “special relationship” under which the federal
superior delegates to the private entity one of its governmental tasks while retaining strict oversight
over the performance of that task. See Watson, 551 U.S. at 152 (reasoning that a relationship where
a private person is “acting under” a federal officer or agency for purposes of § 1442(a)(1) requires
“subjection, guidance or control” and “an effort to assist, or to help carry out, the duties or tasks
of the federal superior”) (citation omitted); Suncor Energy, 25 F.4th at 1253 (explaining that a
private entity may only invoke § 1442(a)(1) if it “go[es] beyond mere compliance with contractual
terms, even if complex, and agree[s] to help carry out the duties or tasks of the federal superior
under that superior’s strict guidance or control”). Here, to the extent Defendants contend that
CoreCivic is performing a federal task that, in the absence of the pass-through IGA arrangement,
the USMS would otherwise need to undertake, the Court agrees. To be sure, providing housing,
sustenance, security, and medical care to federal detainees while they await various stages of their
federal criminal proceedings are responsibilities that would otherwise be borne by the federal
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government and specifically the USMS. But whether the USMS maintains sufficient operational
oversight and control over CoreCivic’s care and management of USMS detainees at CCCC for
CoreCivic to avail itself of § 1442(a)(1) is a much closer question.
To demonstrate that the USMS does not retain the “strict guidance or control” that
§ 1442(a)(1) requires, Plaintiff contrasts the facts of this case with the one on which Defendants
rely in their Notice of Removal: Lind, 2022 WL 429453. At first blush, Lind appears to be on all
fours with the instant case, as the issue before the court there was whether CoreCivic, which
operated a private detention facility in Ohio where the USMS-detainee plaintiff was housed, had
properly invoked § 1442(a)(1). 2022 WL 429453 at *1–2. Indeed, Defendants represent in their
response brief that “[l]ike CCCC, CoreCivic’s Northeast Ohio Correctional Center (“NEOCC”),
at issue in Lind, is subject to an Intergovernmental Pass-Through Agreement between USMS and
Mahoning County and a Management Agreement between Mahoning County and CoreCivic.”
Dkt. No. 16 at 12 n.9. If that were true, Lind would constitute on-point persuasive authority
supporting Defendants’ removal under § 1442(a)(1) here. But as Plaintiff demonstrates in his reply
brief, Defendants are mistaken about Lind.
Plaintiff supplies for the Court’s consideration the contract governing detention services at
the time of events giving rise to the claims at issue in Lind. See Dkt. No. 20, Ex. 5. Unlike the
USMS IGA here, the Lind contract to house federal detainees at NEOCC was entered into directly
between the DOJ and CoreCivic. See id. at 1. It was only after that direct governmental contract
expired, and after the events giving rise to the claims in Lind, that the USMS pursued an indirect
pass-through IGA with Mahoning County similar to the one it entered with the County here. See
Dkt. No. 20, Exs. 6 & 7. Thus, in Lind, the Northern District of Ohio permitted CoreCivic to invoke
federal officer removal jurisdiction in a different context: CoreCivic was defending claims by a
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USMS detainee that arose while CoreCivic was party to a 120-page contract directly with the DOJ
to house USMS detainees and which imposed on CoreCivic – not Mahoning County – various and
sundry obligations to the DOJ in the performance of its detention services. See Dkt. No. 20, Ex. 5.
Plaintiff insists that comparison of the Lind contract and the USMS IGA here reveals “vast
differences” in the oversight the federal government retained and exercised with respect to
CoreCivic’s housing of USMS detainees. Dkt. No. 20 at 4. As Plaintiff sees it, the USMS IGA and
Management Agreement at issue here subjected CoreCivic to only “diluted, indirect oversight,
which, at best, is mediated through the County,” whereas the Lind contract imposed on CoreCivic
“detailed federal standards, inspection, reporting, and enforcement remedies.” Id.
As between the USMS IGA at issue here and the Lind contract, the Court agrees that the
latter contemplates substantially more direct government oversight than the former. Although the
USMS IGA specified that federal detainees were to be held in accordance with state, local, and
federal law, and in a manner consistent with the FPBDS, it is noteworthy that those general
contractual obligations were owed to the federal government by the County and only indirectly (at
most) by CoreCivic through the Management Agreement’s incorporation of the USMS IGA. The
Lind contract, in contrast, contemplated more robust and more direct federal oversight of
CoreCivic’s detention services, obligating CoreCivic to develop policies and procedures consistent
with the American Correctional Association and FPBDS, which were to be reviewed and approved
by the federal government. Dkt. No. 20, Ex. 5, at 11. The Lind contract also required CoreCivic to
ensure specified guard qualifications and to comply the Performance-Based Detention Standards
for Adult Local Detention Facilities, the National Commission on Correctional Health Care
Standards for Health in Jails, and the Prison Rape Elimination Act. See id. at 7, 11, 12, 17, 23, 57,
86, 119.
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With regard to inspection authority, the USMS IGA required only that the County permit
“periodic inspections” by the federal government, allowing access to CCCC, to the federal
detainees housed there, and to relevant records. Dkt. No. 13, Ex. 3 at 3. In contrast to the
discretionary and generally-framed auditing authority contemplated by the USMS IGA, the Lind
contract outlined a comprehensive yearly (or more frequent) auditing scheme. See Dkt. No. 20,
Ex. 5 at 48–53. In terms of medical services, the County’s obligations (and by extension those of
CoreCivic) under the USMS IGA were, again, narrower. The USMS IGA obligated the County to
afford federal detainees “the same level and range of care inside [CCCC] as that provided to state
and local detainees” but to do so in accordance with the FPBDS and the USMS, Publication 100-
Prisoner Health Care Standards. Dkt. No. 13, Ex. 3 at 4–5. But the Lind contract also required
CoreCivic to implement policies and to satisfy detailed requirements for medical staffing,
infectious disease protocols, and emergency response systems. See, e.g., Dkt. No. 20, Ex. 5 at 38–
39, 98–99, 108, 115. With respect to reporting and notification obligations, the USMS IGA
required the County to notify the federal government of any activity by a federal detainee likely to
result in litigation, criminal activity, or a medical emergency. See Dkt. No. 13, Ex. 3 at 8. The
Lind contract went much further, requiring CoreCivic to report to the USMS/DOJ, within specified
time periods, a wide variety of “incidents,” grievances, and uses of force. See, e.g., Dkt. No. 20,
Ex. 5, at 16, 19, 24, 28, 31, 39. Perhaps most critically for purposes of § 1442(a)(1), the Lind
contract incorporated enforcement mechanisms triggered by a failure of CoreCivic to satisfy its
contractual obligations to the federal government (e.g., withholding per diem, mandating
corrective action plans, suspending detainee transfers, immediate termination). Dkt. No. 20, Ex. 5
at 6, 14, 47–48. The USMS IGA, on the other hand, omitted specific contractual penalties for non-
compliance and only permitted termination of the IGA, by the County or the USMS, with thirty
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(30) days’ notice unless an emergency situation requiring immediate relocation of federal
detainees arose. See Dkt. No. 13, Ex. 3 at 4.
Defendants are correct that the USMS IGA included provisions that required compliance
with federal standards, including the FPBDS. Nevertheless, the Court is not convinced that those
obligations, particularly when owed directly to the federal government only by the County,
constitute the type of federal oversight and supervision that § 1442(a)(1) requires. Significantly,
the Tenth Circuit in Suncor Energy determined that the lessor-lessee relationship between the
private energy companies and the DOI there did not constitute the type of “close supervision”
necessary to satisfy § 1442(a)(1) even though leases required the energy companies to drill in
accordance with “federally approved exploration, development, and production plans and
conditions” and even though DOI officials reserved the right to obtain “prompt access” to the
private lessees’ facilities and records. See id. at 1247–48. As the Supreme Court emphasized in
Watson, “the help or assistance necessary to bring a private person within the scope of
[§ 1442(a)(1)] does not include simply complying with [federal] law.” 551 U.S. at 152.
Plaintiff submits that the Lind contract “demonstrates what true [federal government]
oversight looks like: direct contractual privity, mandatory compliance with federal standards,
robust inspection and reporting, and strong enforcement remedies.” Dkt. No. 20 at 7. For their part,
Defendants cite Lind for the proposition that CoreCivic was “subject to detailed regulation through
the FPBDS and regular monitoring and supervision by the USMS and other federal agencies (e.g.,
ICE) whose detainees are housed at CCCC pursuant to the IGA.” Dkt. No. 16 at 12. The Court
agrees with Plaintiff that the contractual relationship between the USMS and CoreCivic in Lind is
more in line with the “special relationship” contemplated in Watson and Suncor Energy.
Conversely, the Court is not convinced that the USMS IGA’s imposition of a duty to adhere to
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federal detention standards on the County, albeit as a pass-through entity for detention services
ultimately contracted to CoreCivic, means that CoreCivic was “acting under” the USMS for
purposes of § 1442(a)(1).
Notably, the OIG appears to agree with the general notion that a pass-through IGA for
housing federal detainees significantly reduces a federal agency’s oversight as compared to a direct
governmental contract to do the same. See Dkt. No. 20, Ex. 7 at 5. Discussing the drawbacks of
pass-through IGAs, the OIG explained that, under such agreements, state or local governments –
not the federal government – manage the day-to-day conditions of confinement, and the USMS
lacks the authority to implement policies at a given facility or to impose consequences if its
requests or recommendations are not implemented. Id. Relatedly, the OIG emphasized that an IGA
pass-through arrangement lacks “specific contractual penalties for noncompliance,” with “[t]he
only remedy for noncompliance [being] for the USMS to reduce or cease its use of the [facility].”
Id. at 5.
In addition to a reduction in contractual oversight and enforcement, Plaintiff contends that
meaningful federal oversight is absent in practice when USMS detainees are housed pursuant to
pass-through IGAs like Plaintiff was here. Indeed, Plaintiff submits that even if the Court were to
find that the limited federal oversight provided for in the USMS IGA implicates § 1442(a)(1), “in
actual practice, the levels of direction baked into th[e] ‘pass-through’ IGAs are not enforced by the
USMS.” Dkt. No. 20 at 10 (emphasis added). In support, Plaintiff points to a July 2024 report
published for Congress by the GAO. See id. In that report, the GAO observed that USMS policy
requires only a “detention facility review” of private facilities operating under a pass-through IGA
(and state and local facilities), whereas it requires a more comprehensive “quality assurance
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review” of private facilities for which it has a direct contract for detainee housing.11 See Dkt. No.
20, Ex. 8 at 8 n. 23, 11. The GAO noted that quality assurance reviews are typically performed by
companies with subject matter expertise, while detention facility reviews are conducted by a
deputy marshal as a “collateral duty.” Id. at 17. The GAO further opined that detention facility
reviews omit “key elements,” observing that, in practice, the USMS has failed to provide adequate
training or guidance for deputies conducting detention facility reviews. Id. Finally, the GAO noted
that “[a]lthough [USMS] has procedures in place to help ensure private facilities address
deficiencies during quality assurance reviews, [it] does not have similar procedures in place” for
facilities subject to detention facility reviews. See Dkt. No. 20, Ex. 8 at 31. In other words, even
the federal government has concerns about the degree and quality of oversight its agencies are
exercising over private facilities operating in the context of pass-through IGAs.
And not only did the USMS and DOJ forfeit considerable contractual oversight and
enforcement mechanisms by relying on a pass-through IGA arrangement to house USMS detainees
at CCCC, Plaintiff insists that in bypassing the competitive bidding process typical of federal
government contracting, these federal agencies also bypassed the process and the negotiations
under which they exert authority and control over a private entity assisting in the performance of
government tasks. Plaintiff’s point is well-taken. Here, instead of contracting directly with
CoreCivic following a competitive bidding process, the USMS essentially made use of detention
services that CoreCivic was already providing to the County under pre-existing contracts with the
expectation that those services would also adhere to federal detention standards.
11 Although Defendants observe that the FPBDS standards, which the County and USMS referenced in the USMS
IGA, were developed in part to “aid subject matter experts in administering the federal government’s quality assurance
program through audits of non-federal detention facilities” (Dkt. No. 16 at 11), Defendants do not submit any evidence
to demonstrate that the CCCC was in fact subject to quality assurance reviews at any time relevant to Plaintiff’s claims.
The GAO report supplied by Plaintiff suggests otherwise. See Dkt. No. 20, Ex. 8.
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Ultimately, the Court concludes that the constellation of contracts that make up the pass-
through IGA arrangement here amount at most to agreements to assist in the performance of a
governmental task (i.e., housing and caring for federal detainees) but without the strict
governmental oversight and supervision necessary to bring CoreCivic within the purview of
§ 1442(a)(1). After all, the Tenth Circuit has emphasized that the relationship between a private
entity and a federal agency must be marked by “close supervision of the private entity” to satisfy
§ 1442(a)(1). See Suncor Energy, 25 F.4th at 1253 (citation omitted). The Court further concludes
that Defendants’ reliance on Lind is wide of the mark and that Defendants have failed to otherwise
point the Court to any authority that would support extending § 1442(a)(1)’s forum protections to
a private entity in CoreCivic’s position here.
In short, by failing to establish that CoreCivic was “acting under” the USMS when it
housed federal detainees at CCCC at the time of the incident giving rise to Plaintiff’s claims,
Defendants have failed to satisfy their burden to demonstrate federal subject matter jurisdiction.
Accordingly, remand is warranted.
IV. CONCLUSION
IT IS ORDERED that Plaintiff’s Motion to Remand (Dkt. No. 13) is GRANTED.
IT IS FURTHER ORDERED that this case is REMANDED to the Thirteenth Judicial
District Court, Cibola County, New Mexico for lack of subject matter jurisdiction.
SO ORDERED.
___________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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