Ndambi v. CoreCivic, Inc.

Opinion

 [*370]  WILKINSON, Circuit Judge:

Appellants are former Immigration and Customs Enforcement civil detainees who allege that they are owed wages under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq., for work performed while detained. The district court dismissed the case on the grounds that this circuit and others have declined to extend the FLSA to custodial settings. For the reasons that follow, we think that task is best left to Congress and thus affirm.

In 2017, appellants were detained for several months at the Cibola County [**2]  Correctional Center (Cibola) in Milan, New Mexico, which houses detainees "while their immigration cases are processed . . . to ensure their presence during the administrative process and, if necessary, to ensure their availability for removal from the United States." J.A. 10. Cibola is operated pursuant to a series of agreements among Cibola County, New Mexico, the Department of Homeland Security, Immigration and Customs Enforcement (ICE), and appellee CoreCivic, Inc. According to its 2016 Intergovernmental Service Agreement (IGSA) with ICE, Cibola County is authorized to "detain immigrants on behalf of ICE." J.A. 9. Cibola County, in turn, entered into a service agreement with CoreCivic, authorizing the for-profit private company "to serve as Cibola's independent contractor for the care and safety of civilly detained immigrants." Id.

Under its service agreement with the county, CoreCivic is bound by the terms of the IGSA between Cibola County and ICE. This includes providing detainees with "safekeeping, housing, subsistence, medical and other services." J.A. 118. The contract also requires CoreCivic to operate Cibola in accordance with ICE's Performance-Based National Detention Standards [**3]  (PBNDS). These standards mandate that CoreCivic offer and manage a Voluntary Work Program (VWP) for detainees. The VWP aims to "reduce[]" the "negative impact of confinement . . . through decreased idleness, improved morale and fewer disciplinary incidents," while also providing detainees "opportunities to work and earn money while confined, subject to the number of work opportunities available and within the constraints of the safety, security and good order of the facility." J.A. 155. As its name suggests, the program is voluntary, although selection and continued participation depend on a detainee's classification level, attitude, and behavior. Work assignments include "preparing and serving meals, cleaning the facilities, performing other janitorial tasks, performing laundry services, and operating the library and the barber shop." J.A. 6. CoreCivic sometimes hires community members of Cibola County to perform the same or similar work. Detainees are not permitted to "work in excess of 8 hours daily, 40 hours weekly." J.A. 157.

Appellants participated in Cibola's VWP by working as janitors and in the library and kitchen. For this work, they were compensated between $1.00 a day and [**4]  $15.00 a week, which is markedly below  [*371]  the federally- and state-mandated minimum wages for covered employees but satisfies the pay required by the VWP standards. See J.A. 13-17. Appellants further allege that because CoreCivic failed to provide them "with adequate facilities and basic necessities," they "used their wages to purchase items, such as phone calls, food, and toiletries, that met their basic needs." J.A. 12. In particular, a 2018 inspection by ICE's Office of Detention Oversight found three deficiencies in regards to food; these related to the temperature of food, a delivery cart that was left unsupervised, and the use of gloves and hair nets by food delivery workers. J.A. 172-73. The facility took appropriate corrective actions before the inspection was completed.

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