By Nathan Hale

Law360 (June 4, 2020, 7:49 PM EDT ) U.S. Immigration and Customs Enforcement argued Thursday that a lack of common issues should stop detainees from collectively pursuing claims that the government failed to follow its own guidance for addressing the COVID-19 pandemic. Meanwhile, the detainees said a judge's recommendation of partial class approval would prevent meaningful relief.

The parties filed their objections with Miami-based U.S. District Judge Marcia G. Cooke in response to a magistrate judge's recommendation that she grant class status for the detainees' condition of confinement claims but not their demands for release and also that any class should not cover detainees whom ICE has transferred out of the three Florida facilities where the 58 named plaintiffs were being held when the suit was filed.

The April 13 complaint claims detainees at Krome Detention Center in Miami-Dade County, Broward Transitional Center in Broward County and Glades County Detention Center are at "imminent risk" of contracting the coronavirus because their "detention renders them unable to follow the Center for Disease Control and Prevention's ... guidelines" for preventing the potentially lethal virus' spread.

They allege that ICE has violated their due process rights by creating an undue increased risk of severe illness or death and their Fifth Amendment rights by failing to abide by the U.S. Centers for Disease Control and Prevention's COVID-19 guidelines and the agency's own rules. They seek injunctive relief and writs of habeas corpus ordering their release to await court dates.

In its objection to U.S. Magistrate Judge Jonathan Goodman's report and recommendation on class certification, ICE argued that the scope of the suit, spanning three facilities, thwarts the commonality, adequacy and typicality requirements for class certification.

"An individualized analysis of each facility is required because each facility has different employees, which is crucial when determining if specific employees allegedly refused to properly supply disinfecting agents and masks, and different [living] configurations, which is crucial when determining whether the social distancing procedures are adequate," ICE argued.

A finding that one detention center violated detainees' rights by not complying with CDC guidelines would have no effect on allegations regarding the other facilities, and thus "will not drive the classwide resolution in 'one stroke,'" as required by U.S. Supreme Court precedent set in the 2011 case Wal-Mart Stores Inc. v. Dukes , the agency added.

A named plaintiff at Krome also would lack standing to represent class members over conditions at BTC and Glades, ICE said.

The detainees argued that Judge Goodman's recommendation erroneously relied on Money v. Pritzker , a 2020 federal case brought by Illinois prison inmates, for its finding that the court cannot rule on common issues regarding their habeas claims. Unlike the issues in the Money case, the ICE detainees here are focused on a common threshold issue of whether ICE used the proper standard in reviewing them for release, they said.

"ICE has acted commonly towards the class in failing to fundamentally alter its standard for release in light of COVID-19," they argued.

The court may need to undertake individualized reviews as to which class members qualify for release after it makes a ruling on proper due process during the pandemic, but that is typical of class actions, they added.

The detainees also argued that Judge Goodman erred in finding that the U.S. Supreme Court's 2004 ruling in Rumsfeld v. Padilla means that the court loses jurisdiction over the habeas claims of any ICE detainees who are transferred to another facility after the suit was filed.

In Padilla, the petitioner filed his habeas claim after he had been transferred to a facility in another district, so the district court where he filed never obtained jurisdiction. But here, the named plaintiffs are seeking to represent a class only of people who were detained under ICE's Miami Field Office when the petition was filed.

The detainees also argued that transfers do not moot potential class members' challenges of the conditions of their confinement, because their claims "do not focus on brick, mortar, or plumbing; they focus on policies, practices, and a virus — all of which will follow the putative class members wherever they go in ICE detention."

Excluding the detainees' habeas claims and transferred detainees from a potential class would "severely impair" the court's ability to provide meaningful relief, the detainees argued.

"As ICE's own arguments have emphasized, there is a hydraulic interrelationship between the various claims here," they said. "If ICE does not substantially reduce the populations at these facilities, then adequate social distancing and other measures will not be feasible."

Allowing ICE to reduce the populations at the three facilities simply by transferring detainees under allegedly unsafe conditions and possibly to other detention centers that are not following CDC guidelines does nothing to help the situation — and possibly makes it worse, the detainees said.

"Thus, taking releases and transfers off the table would hamstring the court's ability to ameliorate the situation," they argued.

ICE has reported compliance with an April 30 temporary restraining order, in which Judge Cooke required the agency to reduce the detention centers' populations below 75% capacity and provide detainees with masks, soap and other cleaning materials.

But three detainees who testified during a virtual hearing Wednesday described a lack of social distancing, scarce cleaning supplies and unexplained transfers carried out without precautions recommended by health experts.

And in a declaration filed Thursday, ICE informed the court that 320 detainees at Glades are currently being held in a "cohort" quarantine together, and it has suspended transfers in and out of the facility because of a recent increase in COVID-19 cases there.

Counsel for the detainees did not comment when reached Thursday, but emphasized that it is important that Judge Cooke does not limit a potential class. A representative for ICE said it is agency policy not to comment on pending litigation.

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 Julia Arciga. Editing by Haylee Pearl.

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