(CN) — Arguing immigrant detainees had failed to adequately provide evidence private prison operator CoreCivic forces them to clean common areas in detention or face punishment, an attorney told the Ninth Circuit on Friday that a federal judge had abused her discretion by certifying the forced labor class action.
“They have provided no such proof,” Struck Love Bojanowski & Acedo attorney Nicholas Acedo, representing CoreCivic, told the Ninth Circuit panel during a virtual hearing Friday.
He added: “They claim the sanitation policy and disciplinary code amounts to forced cleaning, but there is no evidence a plaintiff, after reading the policy, felt compelled to engage in forced cleaning.”
CoreCivic appealed U.S. District Judge Janis Sammartino’s 59-page class certification order finding several classes of immigrant detainees could purse their labor claims — first filed in 2017 — asserting the for-profit prison operator violated state and federal laws by requiring detainees to “clean, maintain and operate” the Otay Mesa Detention Facility in San Diego while only paying them between $0.75 and $1.50 a day for their work.
During the virtual hearing Friday, Acedo argued the George W. Bush appointee had failed to resolve issues related to conflicting evidence presented by the detainees and CoreCovic before certifying a nationwide class action which applies to all 24 of CoreCivic’s private immigration detention facilities.
“What matters is how those policies are being implemented, and on that question, plaintiffs only have four declarations, all from detainees at one facility who claim they were ordered to clean common living areas on occasion and that they feared punishment if they refused,” Acedo said.
In contrast, CoreCivic provided Sammartino with sworn testimony of 11 CoreCivic officials, directors and wardens responsible for implementing the contested cleaning policies which showed only detainees who participated in a voluntary work program were required to clean common living areas, Acedo said.
“Even if participating in VWP, if you do not want to work, you do not have to work,” he added.
But the appellate panel questioned Acedo’s contention a judge could not certify a federal class action due to conflicting evidence presented by both sides.
“This issue of what evidence do you have to have at the class certification stage is an interesting question because if you have uniform evidence from one side and uniform evidence to the contrary from the other side, do we then have to say ‘it’s disputed and we therefore can’t certify?’” U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, asked.
Acedo argued “we’re dealing with more than just a denial, we’re dealing with sworn testimony and comparing that to the proof of plaintiffs.”
Fletcher pushed back.
“I understand sworn testimony — that’s the nature of evidence,” he said. He pointed out “that’s a pretty easy way to defeat class certification,” if they were all denied based on Acedo’s argument regarding conflicting evidence.
Fellow Clinton appointee U.S. Circuit Judge M. Margaret McKeown posed another question: “Another point to add into the calculus is really the standard of review. Can we actually say the district court made an error as a matter of law or in her evaluation of the evidence?” she asked
Acedo said Sammartino “just punted” the issue of rectifying the conflicting evidence when she was required to resolve the issue because it gets at the heart of the commonality question of the class claims.
“That is an error of law and can be held as an abuse of discretion,” Acedo said.
But Fletcher pointed out a “safety valve” in class certification rules which could be utilized if more evidence came in showing there was inconsistent practices from one CoreCivic prison to the next: decertification of the class.
“Some call it a safety valve, others call it a very expensive endeavor,” Acedo said to laughter from the panel.
He elaborated: “To have to move on from this stage in a nationwide class action of 24 facilities is a very, very costly endeavor, which is why the Supreme Court has said this class certification stage is pretty critical. That’s why they imposed this rigorous analysis requirement and that’s why they increased the scrutiny that must be applied to these decisions.
“We may have arguments down the road, but this was the point in time for plaintiffs to come forth with their evidence. This was their moment, and they did not rise to that occasion,” Acedo added.
But Foley & Lardner attorney Eileen Ridley, representing the immigrant detainees, said they had shown the sanitation and disciplinary policies were standard across CoreCivic facilities through the deposition of CoreCivic’s corporate representative, “who confirmed these policies were in fact template policies.”
The representative said the policies were “generic” and no one facility could opt out of them. Furthermore, Corecivic had to approve any policy modifications made by individual facilities, Ridley said.
“At the certification stage, the issue is if there is significant proof, significant evidence,” Ridley said. “There may be contradictory evidence but that does not negate the ability to certify a class.”
Senior U.S. District Judge Richard D. Bennett, a George W. Bush appointee sitting by designation from the District of Maryland, rounded out the panel, which did not indicate when or how it would rule.
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