Case: Southern Poverty Law Center v. U.S. Department of Homeland Security

COVID-19 Summary: On May 7, 2020, in this access-to-counsel suit, the plaintiffs sought a temporary restraining order in response to COVID-19, directing the defendants to remove access barriers and ameliorate dangerously punitive conditions at the detention facilities at issue, such as providing detainees with access to free and private phone calls. They claimed that the defendants had restricted access to legal visitations due to COVID-19, but failed to accommodate remote communications. The court granted in part the temporary restraining order on June 17, 2020, ordering the defendants to provide the plaintiffs adequate telephone access, ensure that phones were in proper working order, and ensure attorney-client confidentiality on all phone calls, among other things. The defendants appealed the TRO on August 14, 2020, but later withdrew the appeal.

 
The Southern Poverty Law Center (SPLC) brought this suit for declaratory and injunctive relief on April 4, 2018 in the United States District Court for the District of Columbia challenging the Department of Homeland Security's (DHS) alleged policy and practice of deliberately keeping detainees in immigration prisons from meaningfully accessing legal counsel. The SPLC sued DHS and U.S. Immigrations and Customs Enforcement (ICE) alleging that the defendants violated the Fifth Amendment due process rights of SPLC's clients in civil detention, as well as SPLC's First Amendment right to represent civil detainees. The case was assigned to Judge Colleen Kollar−Kotelly.

The SPLC brought suit in its individual capacity and on behalf of its clients detained in three detention facilities located in Louisiana and Georgia. The SPLC specifically argued that "[t]he totality of barriers to accessing and communicating with attorneys endured by detainees in these prisons deprives the SPLC’s clients of their constitutional rights to access courts, to access counsel, and to obtain full and fair hearings," as well as the "SPLC’s rights to represent civil detainees." The complaint asserted that noncitizens in these prisons were detained for civil and not criminal reasons, and that many had claims that would lead to release on bond or parole if they were granted removal proceedings, while many others had claims that would allow them to remain in the United States. The complaint further stated that noncitizen detainees were over 10 times more likely to win their cases, almost seven times more likely to obtain bond, and almost 20 times more likely to win their cases after release if they had legal representation during their detention.

The problem, the SPLC argued, was that these prisons were in geographically remote and isolated areas, making it "often . . . impossible to secure counsel." Even if a detainee could secure counsel, DHS prevented meaningful communication in various ways, including by restricting access to interpreters. Moreover, the prisons were so crowded that effective attorney-client meetings were often near impossible, and DHS permitted the prison operators to "enjoy virtual impunity in engaging in [unjustified] obstructive conduct." The SPLC also argued that attorneys trying to visit their clients often faced harassment, including facing verbal harassment for supporting "illegal immigration," forcing attorneys to remove their undergarments before entering the prison, and keeping them confined to locked areas of the prison for hours.

On May 4, 2018, the SPLC moved for a preliminary injunction. On July 26, 2018, the parties filed a status report indicating that they had negotiated a full resolution of the motion and that a corresponding settlement agreement would be forthcoming. The parties notified the court they had reached a settlement agreement regarding the LaSalle detention facility on September 5, 2018 and the SPLC withdrew their motion for a preliminary injunction. Per the settlement, the defendants agreed to stop limiting confidential legal calls to under two hours and stop preventing or interrupting legal in-person visits or phone calls. The defendants also agreed to provide an adequate attorney consultation room, game room, Skype room, and pre-hearing room. The settlement provided for alternative dispute resolution should any issue arise over its implementation.

On September 26, 2018, the defendants moved to sever the claims against each of the individual facilities into three separate proceedings, arguing that the claims did not arise out of the same transaction or occurrence and did not involve a common question of fact or law. Accordingly, the defendants requested that the court transfer the claims to the districts in which each of the facilities were located. The court, exercising its discretion, denied the defendants’ motion on May 10, 2019, finding that the access-to-counsel issues at all three facilities allegedly stemmed from the administration and enforcement of national standards impacting all facilities, and that severance would be inefficient. Additionally, the court found that the plaintiffs’ choice of forum was proper and the interests of justice did not warrant transfer to a different forum.

Meanwhile, on October 31, 2018, the SPLC filed an amended complaint adding a count alleging violations of the Administrative Procedure Act (APA) for ICE's failure to comply with its own agency rules. On August 28, 2019, the SPLC filed a second amended complaint, replacing several government defendants with new government defendants.

On March 18, 2020, the defendants moved for mediation, also requesting to stay discovery pending mediation. The SPLC agreed to mediate, but objected to staying discovery, arguing that the SPLC needed some of the requested information from the defendants for the mediation to be effective. The SPLC also requested that the court grant limited and expedited discovery for the purpose of mediation.

The following day, Judge Kollar-Kotelly granted the motion for mediation, referring the case to circuit court mediators for settlement proceedings from March 20, 2020 through June 1, 2020. On April 7, 2020, the court denied the defendants’ request to stay discovery pending mediation, as well as the SPLC’s request for limited discovery, stating that the limited discovery could take weeks if not months.

In early May, the parties filed a joint status report notifying the court that mediation had been put off until the discovery disputes were resolved.

On May 7, 2020, in response to the COVID-19 pandemic, the SPLC sought a temporary restraining order directing the defendants to remove access barriers and ameliorate dangerously punitive conditions at the detention facilities at issue, by taking steps such as providing detainees with access to free and private phone calls. The SPLC claimed that the defendants had restricted access to legal visitations due to COVID-19, but failed to accommodate remote communications.

In response, the defendants argued that they had implemented COVID-19 protocols necessary to reduce the risk of COVID-19, such as providing protective equipment, and had expanded hours for video teleconferencing attorney-client visits. They further asserted that the court lacked jurisdiction to grant the temporary restraining order.

The court granted in part the SPLC’s motion for a temporary restraining order on June 17, 2020. Specifically, the court ordered the defendants to provide the plaintiffs with adequate telephone access, ensure that phones were in proper working order, and ensure attorney-client confidentiality on all phone calls, among other things. 2020 WL 3265533.

On July 14, 2020, the defendants moved to partially dismiss the second amended complaint for lack of subject matter jurisdiction.

On August 7, 2020, the plaintiffs, asserting that the defendants were not in compliance with the court’s June 17 temporary restraining order, moved to enforce the order concerning the COVID-19 mitigations. The court requested an updated compliance report from the defendants on August 10, which was filed by the defendants on August 21.

Meanwhile, on August 14, the defendants appealed the temporary restraining order to the U.S. Court of Appeals for the D.C. Circuit.

On March 4, 2021, the court requested that the parties confer and submit a joint status report addressing how the pending appeal in the U.S. Court of Appeals for the D.C. Circuit impacted the parties’ four pending motions in the trial court. Two of these motions were the defendants July 14, 2020 renewed motion to partially dismiss the second amended complaint for lack of subject matter jurisdiction, and the SPLC’s August 7, 2020 motion to enforce the court’s temporary restraining order concerning the COVID-19 mitigations. The two remaining motions were discovery disputes: the SPLC’s motion to compel and the defendants’ motion for a protective order.

On March 17, 2021, the parties filed a joint motion for mediation and to stay the litigation. The court granted the motion the same day, stayed proceedings, and referred the parties to the Executive Office of the Circuit for mediation through June 2, 2021. The court set mediation to begin on March 29, 2021.

Following the granting of the joint motion for mediation, the defendants filed an unopposed motion to voluntarily dismiss their appeal, which the U.S. Court of Appeals for the D.C. Circuit granted on April 14, 2021. 2021 WL 1438297.

After the parties jointly agreed to extend the mediation deadline until August 2, 2021, the parties informed the court that their mediation did not result in a resolution. 

On August 16, 2021, the parties submitted a joint status report in response to the court’s March 4, 2021 request. On August 25, 2020, the court issued a brief order addressing the pending motions. Regarding the SPLC’s motion to enforce the June 17, 2020 temporary restraining order, the court ordered the parties to meet and confer by September 3, 2021, to discuss the defendants’ compliance with the temporary restraining order. Additionally, the court ordered the SPLC to file a supplemental brief with any legal and factual updates, and permitted the defendants to respond to said brief. Regarding the defendants’ renewed motion to dismiss the second amended complaint, the court allowed the parties to submit supplemental briefing on relevant authorities. Regarding the discovery motions, the court stated that it would hold them in abeyance until it ruled on the defendants’ motion to dismiss.

On February 2, 2022, the court denied without prejudice in part and held in abeyance the SPLC’s motion to enforce the June 17, 2020 temporary restraining order. In their original motion and in their supplemental memorandum, the SPLC argued that the defendants were not in compliance with the court’s order. The SPLC requested (1) an order mandating compliance and (2) the appointment of a special master after a finding of noncompliance. The defendants, on the other hand, had argued that they were in fact in compliance. The court held that because the parties’ dispute was factual and based on patterns and practices at facilities that the SPLC did not have physical access to, the court would defer resolving the evidentiary issues and appoint a special monitor to inspect the facilities for compliance. The court further ordered the parties to meet and confer by February 16, 2022, to identify experts in civil detention that could adequately serve as a special monitor. 

On April 14, 2022, the court appointed a special monitor to visit the defendants’ facilities unannounced and bring with him cameras, cell phones, writing implements, and any other materials needed to conduct inspections. The special monitor would also be tasked with reviewing the defendants’ documents and other records, as well as interviewing employees and contractors working at the defendants’ facilities. The court ordered the special monitor to submit a report of his findings to the court.   

On June 2, 2022, the court finally issed ruled on the defendants' July 14, 2020 renewed motion to dismiss the second amended complaint for lack of subject matter jurisdiction. The defendants had argued that the SPLC’s Fifth Amendment claims should be dismissed because they “arise from” removal proceedings, which the court lacks jurisdiction to review pursuant to 8 U.S.C. § 1252(b)(9). The defendants also argued that the SPLC’s APA claim should be dismissed because the claim did not challenge a final agency action as required by 5 U.S.C. § 702. 

The court dismissed in part and granted in part the defendants’ motion to dismiss. Specifically, the court granted the defendants’ motion in regards to the SPLC’s Fifth Amendment right-to-counsel claims that, agreeing with the defendants that the claims must be dismissed because they arose solely from removal proceedings and the court lacked subject matter jurisdiction to hear them. However, the court did not dismiss all of the SPLC’s Fifth Amendment claims. Instead, the court held that the SPLC’s Fifth Amendment 1) access-to-courts claim 2) full-and-fair-hearing claim, and 3) punitive-conditions claim survived to the extent that they did not arise from removal proceedings. 

Furthermore, the court denied the defendants’ motion to dismiss in regards to the SPLC’s APA claim. The Court ruled that the APA claim survived because the defendants failed to point to a statute stripping the court of general federal question jurisdiction applicable to APA claims. 

On June 6, 2022, the special monitor submitted his report to the court regarding whether the defendants’ facilities were in compliance with the June 17, 2020 temporary restraining order. The special monitor inspected three of the defendants’ facilities and evaluated them for the following criteria: 

1. whether there was a working phone or video teleconferencing console for every ten presently detained individuals;
2. whether legal calls made on those telephones were direct or free;
3. whether DHS and/or ICE had implemented a clear process in writing for reporting and troubleshooting issues;
4. whether there was a designated point of contact in each facility for such troubleshooting;
5. what technical issues had arisen and how long it had taken to remedy the issue;
6. to what degree legal calls were monitored and, based on the positioning of the phones, whether facility staff could overhear a legal call;
7. whether clear internal and external procedures had been implemented in writing for scheduling and accessing telephone calls and virtual teleconferences;
8. if so, how the procedures had worked in practice in the relevant time;
9. what the compliance with the Center for Disease Control (CDC) Guidelines for Correctional Facilities was as to the cleaning of devices and spaces for legal calls;
10. whether there were procedures in writing for the exchange of confidential documents and/or obtaining signatures via electronic means;
11. what those procedures were and how they had worked during the relevant time; and
12. if there had been training for (relevant) staff regarding the procedures for scheduling remote legal visits through telephone calls and virtual teleconferencing implemented by the facilities on how to ensure attorney-client confidentiality for legal calls. 

The special monitor found that all three of the inspected facilities were in compliance with the criteria set by the court. The special monitor also found that two of the facilities could enhance compliance by incorporating material spread throughout the detainee handbook into a single succinct document and by improving their system of on-call translators. In response to the special monitor’s report, Judge Kollar-Kotelly denied the SPLC’s pending motion to enforce the temporary restraining order on June 30, 2022.

On July 14, 2022, the defendants moved for reconsideration of the court’s May 10, 2019 denial of their motion to sever the claims and transfer venue. The defendants asserted that, while the court initially perceived the case as a challenge to national-level policies and standards, the course of the litigation had made clear that the SPLC’s claims instead amounted to a challenge to the conditions of confinement at the three detention facilities. They further argued that the court’s dismissal of the Fifth Amendment access-to-counsel claims for detainees in removal proceedings narrowed the proceedings such that transferring venue to a district in which one or more of the facilities was located was in the interests of justice.

On July 29, 2022, the defendants filed a partial motion for judgment on the pleadings, arguing that the plaintiffs (1) failed to state a third party access-to-courts claim; (2) failed to state a third party due process claim as to bond proceedings; (3) failed to state an APA claim; and (4) failed to state a First Amendment claim. The plaintiffs filed their response to the defendants’ partial motion for judgment on the pleadings on August 26, 2022. 

As of February 3, 2023, the case was ongoing.