Judge Won't Ax Detainees' Suit Over COVID-19 Hot Spot Yet

By Nadia Dreid
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Law360 (December 17, 2020, 7:48 PM EST) -- Before a Virginia federal judge decides whether to let stand a suit accusing immigration officials of allowing the coronavirus to "spread like wildfire" in a detention facility where almost 90% of detainees tested positive, she wants a fuller record.

U.S. District Judge Leonie M. Brinkema said Thursday during a hearing that she wasn't going to ditch any claims in the suit just yet, save those laid against the federal government by three detainees who have since been released from immigration custody.

The judge said she wants more information before she makes a call on whether the government or the company contracted to run the Farmville, Virginia, facility are immune to the detainees' claims that their actions turned the detention center in a "tinderbox that engulfed nearly everyone in the facility."

"It makes a much better record down the road for appellate review," she said.

Though she seemed to side with appellate precedent that says the contractors — in this case, Immigration Centers of America — were covered by the federal government's immunity, Judge Brinkema said the issue was "very complex" and she'd like to see it fleshed out more.

"As you know, there is a concept of derivative sovereign immunity for federal government contractors, but it's not an unlimited immunity," she said. "It requires the contractor to be in full compliance with the terms and conditions of the contract."

The government is also in the middle of appealing Judge Brinkema's August order blocking it from transferring anyone into or out of the Farmville facility where, at the time, 80% of detainees had tested positive for the virus, which the judge said is another reason to hold off on dismissing any claims.

Detainees filed suit in August claiming that they were being forced to sleep practically on top of each other as the coronavirus tore through the facility and were denied medical treatment once they sickened. The plaintiffs, all but one of whom caught the virus at some point, say they were denied personal protection equipment, the opportunity to social distance and even adequate nutrition.

According to their amended complaint, the "first match was struck" in June when the government transferred a batch of 74 detainees from other facilities, half of whom would later test positive for the coronavirus, to the Farmville facility. Those detainees weren't tested beforehand, the suit claims.

And the only reason they were brought in, according to the suit, was because the government wanted to deploy U.S. Department of Homeland Security tactical teams to the George Floyd protests in Washington, D.C., but rules prevent immigration officials from chartering flights unless they are transferring prisoners.

The detainees claim that the government behaved recklessly by transferring in the prisoners and that the facility behaved similarly recklessly by accepting them, even though its contract allowed it to refuse, something the detention center contests.

The facility reported Thursday that there are no current cases at Farmville, which Judge Brinkema said she was "pleased to hear."

It has been a particularly deadly year for U.S. Immigration and Customs Enforcement. In the 2020 fiscal year, 21 people died while in the agency's custody, more than twice than the year before and more than any other year since 2005.

And as the coronavirus continued its deadly march across the country, it also flourished in ICE facilities, where more than 8,000 people tested positive at some point this year, according to government data. At least eight detainees died this year while in custody after testing positive for the virus.

The detainees are represented by Joseph D. West, David Debold, Naima L. Farrell, Thomas J. McCormac IV, Blair Watler and Katherine King of Gibson Dunn & Crutcher LLP, Simon Sandoval-Moshenberg, Kristin Donovan and Granville Warner of Legal Aid Justice Center, and Sirine Shebaya and Amber Qureshi of the National Immigration Project of the National Lawyers Guild.

The government is represented by Yuri Fuchs of the U.S. Attorney's Office for the Eastern District of Virginia.

The suit is Santos Garcia et al. v. Wolf et al., case number 1:20-cv-00821, in the U.S. District Court for the Eastern District of Virginia.

--Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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