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Can the False Claims Act Protect Immigration Detainees from Forced Labor?

Posted  July 2, 2021

By William Greenlaw

A recent human rights case raises a novel question of False Claims Act applicability: when private immigration detention facilities defraud the government by forcing individuals into labor. The federal government has a vast regulatory and statutory scheme meant to stop federal contractors from using trafficked labor. But forced labor in detention facilities has historically been overlooked. After a recent Fifth Circuit decision, that may no longer be the case—and the FCA may be the best vehicle to challenge and change these disturbing labor practices.

New guidance on the TVPA in detention settings

The case in question arose after Martha Gonzalez successfully received a visa designed for trafficked people after fleeing to the United States from Mexico. Before being granted legal status, however, she was detained in a private prison. CoreCivic, formerly known as the Corrections Corporation of America, is a for-profit detention center organization. The United States contracts with them to house unlawful immigrants pending deportation proceedings. Gonzalez’s treatment at CoreCivic was not kind, to say the least. She alleged she and other detainees were forced into work—cleaning floors, preparing food for prison events, even barbering hair and other labors. If they refused, prison officials threatened her and other detainees with solitary confinement, and women were denied access to feminine hygiene products. Once released, Gonzalez sued CoreCivic in a class action alleging a violation of the Trafficking Victims Protection Act (TVPA), which forbids forced labor. CoreCivic, in turn, argued that immigration detainees could not enjoy the protections of the TVPA—claiming a wholesale exemption from the law for their industry. The Fifth Circuit did not buy it and held that the TVPA does indeed apply to private prisons like any other corporation.

Gonzalez has experienced success at this junction of her suit, and her case remains in motion. Yet plaintiffs such as Gonzalez face a steep road. They may encounter difficulties communicating with English-speaking attorneys, may have fewer resources than their well-heeled adversaries, and may find difficulty attaining legal counsel who must be selective about cases working on contingency. It is worth considering whether other avenues of legal action can better assist these kinds of claims.

Can the False Claims Act fill the gap?

The False Claims Act provides serious penalties for anyone who defrauds the federal government. The FCA requires the fraud to be knowing and material to a transaction with the federal government. Private detention centers such as CoreCivic are obligated to abide the Performance-Based National Detention Standards, which prohibit, among other things, personal abuse of detainees. The PBNDS requires work programs be voluntary: “Detainee working conditions shall comply with all applicable federal, state and local work safety laws and regulations.” This would include the TVPA. It is reasonable to assume the government would not have signed its CoreCivic contract had it known that CoreCivic was forcing women to clean floors in exchange for basic sanitary products. Thus, under materiality standards described in United Health Services v. Escobar, a private immigration detention facility violating the TVPA may be liable under the FCA.

Litigating under the FCA provides benefits over traditional class action impact litigation. It helps resolve any lack of resources on plaintiffs’ part because the federal government can officially intervene to support the case and brings to bear its enormous investigatory power. It also helps raises the bar on any potential litigation risk for defendants, who are liable for triple the damages caused to the federal government through their fraud. Thus, Gonzalez’s lawsuit could have been brought under the FCA to better incentivize attorneys and accomplish the normative goal of calling out injustice. The FCA likely could have empowered Gonzalez’s suit exposing the abuses of private prisons—and potentially others like it in the future.

Human rights litigation can benefit from the FCA

Using the FCA may not seem like the obvious choice for challenging forced labor. One could have a concern that litigating fraud is beside the point. The issue is not fraud; it is human rights abuses. In such suits, there also may be a concern that the federal government’s support could shift depending on the presidential administration. Public interest attorneys used to publicizing their suits may also chafe against the FCA’s sealing requirements, meaning the case cannot be leveraged as a public tool for activism until it is done.

On the other hand, an FCA relator has the opportunity to stand-in for the United States vindicating the people’s interest in addition to their own rights. Instead of Gonzalez v. CoreCivic, the case would have instead been United States of America ex rel Gonzalez v. CoreCivic. The name itself can be a potentially a powerful normative statement that United States law does not tolerate corporate lies in pursuit of human rights violations. And the settlement terms could include additional monitoring requirements and other obligations that could ultimately threaten the enterprise of the private detention center itself if the defendant did not cease its practices.

Gonzalez likely has a challenging road ahead for her claim, but innovative uses of the False Claims Act and potentially other whistleblower statutes could breathe life into holding prison abuses to account.

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Tagged in: Correctional Services Fraud, FCA Federal, Government Procurement Fraud, Human Rights, Importance of Whistleblowers, Whistleblower Eligibility,