By Nathan Hale

Law360 (May 14, 2020, 10:22 PM EDT ) U.S. Immigration and Customs Enforcement told a Florida federal judge Thursday that a lawsuit brought by detainees over "atrocious conditions" at three Florida detention centers during the COVID-19 pandemic is unsuitable for class action treatment because it requires highly individualized analyses.

During a videoconference hearing, U.S. senior litigation counsel Dexter Lee, who is representing the agency, argued that class treatment is an exception to the norm of individual litigation. He said the 58 named plaintiffs cannot show a common issue that would drive their case for the release of the roughly 1,125 detainees at the three facilities, because the litigation will require detailed analyses of the individual detainees and their particular confinement conditions.

Lee said detainees must instead bring their suits individually, as unwieldy as that may become, and the courts would have to work through each case to make factual findings and determine if the individuals' rights were violated.

"It would require individualized review. Would it be lengthy and painstaking? Yes," Lee said. "It may sound harsh, but yes, that is the method by which these claims will be adjudicated."

But counsel for the detainees jumped on another argument the government attorney made that a class action is not necessary because ICE treats the individual detainees alike, so any remedy obtained by the individual plaintiffs, such as an order that the agency supply masks or soap, would also benefit other detainees at the three centers.

"That kind of sounds like a class action to me, and it sounds like what we're asking for here," Scott Edson of King & Spalding LLP said, adding that the government in its briefing and arguments had not articulated why the detainees' claims cannot be adjudicated "en masse."

In their motion, the 58 detainees asked the court to certify a class of all individuals in civil immigration detention at three Florida centers — the Krome Service Processing Center in Miami-Dade County, the Glades County Detention Center and the Broward Transitional Center in Broward County — who they say are all at risk of becoming sick in the crowded and unsafe conditions.

Lee told the court that the latest counts had 334 detainees at Krome, 445 in Broward and 345 in Glades, following transfers and releases the agency has carried out to comply with an April 30 court order requiring the agency to reduce the three facilities' detainee populations to 75% capacity to allow for social distancing. All three are currently at or below that level, according to ICE.

Edson argued that while ICE would have to look at individual factors in prioritizing possible release of detainees, the detainees' claims — including that the government is violating detention standards and committing deliberate indifference by failing to adhere to guidelines issued by the U.S. Centers for Disease Control and Prevention — look at how ICE is administering those standards "as a whole."

"COVID-19, unfortunately, is a risk that everybody faces," Edson said. "It's the overall scheme and the implementation of that scheme that is being challenged."

The parties also sparred over whether detainees who have been released or transferred to other facilities still have standing to bring their claims. U.S. District Judge Marcia G. Cooke, who is presiding over the case, ruled that ICE could transfer detainees to other detention centers as part of its efforts to comply with her April 30 order.

The government's position is that detainees' standing vanishes the moment they leave one of the detention centers, Lee said.

"They really have no ability to complain about conditions at a facility where they are no longer detained," he said, adding that what might suffice to allow the court to hear plaintiffs' case when they first file their complaint might not be factually sufficient when a court is later considering a summary judgment motion.

But Edson countered that it is important to distinguish between jurisdiction, which he said is established when the case is filed, and claims of mootness, which require a defendant to make certain showings.

If ICE's position is that the transfers have ameliorated the unsatisfactory conditions, then the agency must come to the court and show that. And even then, the court would retain jurisdiction over the case, he argued.

U.S. Magistrate Judge Jonathan Goodman, who presided over Thursday's hearing and will issue a recommendation to Judge Cooke on the class certification motion, appeared to entertain the detainees' argument that ICE's position on standing could set up a "shell game," where the agency could engage in a never-ending series of transfers to keep detainees out of the jurisdiction of the courts.

But the magistrate also presented the parties with a ruling from a case in Illinois, Money v. Pritzker , in which a federal judge concluded that even if a proposed class of Illinois Department of Corrections inmates had a plausible claim, they likely would not be able to receive classwide relief because there is no way to decide which inmates should be released without an inmate-specific inquiry.

Edson contended that case is distinguishable, because it deals simply with the issue of release, and not transfers or conditions of confinement present here. Judge Goodman gave the detainees until Monday to file a supplemental brief on the Illinois ruling.

The detainees are represented by Rebecca Sharpless and Romy Louise Lerner of the University of Miami School of Law Immigration Clinic; Scott M. Edson, Kathryn S. Lehman and Chad A. Peterson of King & Spalding LLP; Gregory P. Copeland and Sarah T. Gillman of the Rapid Defense Network; Mark A. Prada and Anthony Richard Dominguez of Prada Urizar PLLC; Paul R. Chavez and Maia Fleischman of the Southern Poverty Law Center; Andrea Montavon-McKillip of the Legal Aid Service of Broward County Inc.; and Lisa M. Berlow-Lehner of Americans for Immigrant Justice.

The government is represented by Dexter Lee and Natalie Diaz of the U.S. Attorney's Office for the Southern District of Florida.

The case is Gayle et al. v. Meade et al., case number 1:20-cv-21553, in the U.S. District Court for the Southern District of Florida.

--Additional reporting by Carolina Bolado. Editing by Haylee Pearl.

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