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Discovery Allowed in Class Action Over $1 Immigrant Detainee Pay

Nov. 15, 2019, 2:32 PM

GEO Group Inc. can subpoena certain Washington state government officials in a case over its operation of an immigrant detainee work program paying $1 per day, even though it already had one bite at the apple in a separate lawsuit brought by the state, the Western District of Washington held.

The state argued that GEO, which operates the Northwest Detention Center in Tacoma, Wash., was trying in the class action brought by private plaintiffs to get discovery it missed out on in the state-filed case. The discovery deadline in that case closed in June.

Judge Robert J. Bryan of the U.S. District Court for the Western District of Washington disagreed, saying that the testimony GEO is seeking from two state government officials may be tangentially relevant to the case. GEO also can subpoena the state itself as long as the information it’s seeking doesn’t duplicate what was already covered in the case filed by the state, he said in a Nov. 14 decision.

The class action is one of a handful of cases challenging the Voluntary Work Program in various immigrant detention centers around the U.S.

The program, developed by Immigration and Customs Enforcement and implemented by GEO and CoreCivic, pays detainees $1 a day for tasks such as laundry, food preparation, and cleaning. Critics say the program isn’t actually voluntary and violates state minimum wage laws.

State Lawsuit Ongoing

In October, Bryan said the state of Washington could maintain its lawsuit against GEO’s operation of the VWP despite the company’s assertion of intergovernmental immunity. He had earlier proposed an order dismissing the case on the ground that the state was discriminating against a federal contractor for doing the bidding of the federal government. Washington’s own work program for state detainees also pays far below the state’s minimum wage of $12 per hour, he said.

But state detainees aren’t similarly situated to immigrant detainees, and so the comparison doesn’t work, the court said.

The case filed in September 2017 by Washington Attorney General Bob Ferguson (D) is one of several filed against the Trump administration. Bryan joined that case with the private class action for purposes of determining GEO’s liability.

In the Nov. 14 decision, the court said GEO can obtain the depositions of a senior program manager at Labor and Industries and the assistant secretary of the Washington Department of Health and Human Services.

The company can’t, however, obtain testimony from the L&I director and deputy director under the Apex doctrine, which prevents high-ranking government officials from having to appear for depositions absent extraordinary circumstances.

Schroeter Goldmark & Bender, Open Sky Law, and the Law Office of R. Andrew Free are representing the plaintiffs. Akerman LLP and III Branches Law are representing GEO. Washington is representing itself.

The case is Nwauzor v. Geo Grp., Inc., 2019 BL 438375, W.D. Wash., No. 3:17-cv-05769, 11/14/19.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Patrick L. Gregory at pgregory@bloomberglaw.com