PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-2207

DESMOND NDAMBI; MBAH EMMANUEL ABI; NKEMTOH MOSES AWOMBANG, individually and on behalf of all others similarly situated,

Plaintiffs – Appellants,

and

IVAN CHACON CHACON; PRUDENCIO RAMIREZ; HONORE OTAYEMA RECINOS; BOKOLE UMBA DIEU,

Plaintiffs,

v.

CORECIVIC, INC.,

Defendant – Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:18-cv-03521-RDB)

Submitted: January 29, 2021 Decided: March 5, 2021

Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Keenan and Judge Diaz joined. Joseph M. Sellers, Michael Hancock, Stacy N. Cammarano, COHEN MILSTEIN SELLERS & TOLL PLLC, Washington, D.C.; Robert S. Libman, MINER, BARNHILL & GALLAND, P.C., Chicago, Illinois, for Appellants. Daniel P. Struck, Nicholas D. Acedo, STRUCK LOVE BOJANOWSKI & ACEDO, PLC, Chandler, Arizona; Paul J. Maloney, Matthew D. Berkowitz, K. Maxwell Bernas, CARR MALONEY P.C., Washington, D.C., for Appellee.

2 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,

, 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.

I.

In 2017, appellants were detained for several months at the Cibola County

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.”

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

3 National Detention Standards (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 $15.00 a

week, which is markedly below 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,

4 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.

After their release, appellants filed this suit in November 2018 on behalf of

themselves and others similarly situated, alleging that CoreCivic violated the Fair Labor

Standards Act (FLSA),

, et seq., New Mexico Minimum Wage Act

(NMMWA),

, et seq., and the common law doctrine of unjust

enrichment by paying civilly detained immigrant workers less than federal and state-

mandated minimum wages. CoreCivic filed a motion to dismiss for failure to state a claim

pursuant to Federal Rule of Civil Procedure 12(b)(6) in January 2019, which the district

court granted in September 2019.

The district court relied upon this court’s decision in Harker v. State Use Industries,

(4th Cir. 1993), which held that a prison inmate was not covered by

FLSA for his work in the prison’s graphic print shop because the custodial context differs

substantially from the traditional free labor market. J.A. 179. It also found the Fifth

Circuit’s decision in Alvarado Guevara v. I.N.S.,

(5th Cir. 1990),

persuasive, which held the FLSA inapplicable to work performed by alien detainees

because they were “removed from American industry” while detained.

The trial court

thus concluded that appellants were not “employees” as contemplated by the FLSA or

NMMWA and were therefore not entitled to federal or state-mandated minimum wages.

“The economic reality of the Plaintiffs’ situation,” the court noted, “is almost identical

to a prison inmate and does not share commonality with that of a traditional employer-

5 employee relationship.”

The court then dismissed appellants’ unjust enrichment claim

as contingent on the success of their FLSA claim. J.A. 179–80.

We review a district court’s grant of a motion to dismiss de novo. Harbourt v. PPE

Casino Resorts Md., LLC,

(4th Cir. 2016). To survive a motion to

dismiss under Rule 12(b)(6), a complaint must contain “sufficient factual matter, accepted

as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) (internal quotation marks omitted); Harbourt,

.

II.

Appellants argue that they are owed wages under the minimum wage provisions of

the FLSA and NMMWA for work performed while they were detained for civil

immigration proceedings because they were “employees” under those acts. But such a

claim is clearly foreclosed by this circuit’s precedent and the well-established principles

governing the interpretation of the FLSA. 1

A.

The FLSA requires an “employer” to pay an “employee” no less than the federal

minimum wage.

(a). As has been noted, the Act’s “circular” definition of

“employee”—“any individual employed by an employer,”

(e)(1)—is

unhelpful. Harker,

; see also Henthorn v. Dep’t of Navy,

(D.C. Cir. 1994). The Act further defines “employer” as “any person acting . . . in the

The parties agree that the NMMWA should be interpreted in accordance with the 1

FLSA and that the appellants’ unjust enrichment claim depends on the success of their FLSA claim. Thus, our discussion is limited to interpreting the FLSA. 6 interest of an employer in relation to an employee,”

§ 203(d), and “employ” as “to suffer

or permit to work,” id. § 203(g). It then exempts a host of positions, including “criminal

investigator” and “casual” babysitter, from the Act’s minimum wage and hour

requirements. Id. § 213(a).

Appellants claim that because civil immigration detainees are not expressly

exempted from the FLSA’s coverage, they must be subject to its minimum wage

provisions. But this argument puts the cart before the horse. An individual must first be

an “employee” for purposes of the FLSA before his or her position may be exempted from

the Act’s provisions. Harker,

(noting that this argument “presupposes that

inmates in SUI-type programs should be considered employees for FLSA purposes in the

first place”); Bennett v. Frank,

(7th Cir. 2005) (“The reason the FLSA

contains no express exception for prisoners is probably that the idea was too outlandish to

occur to anyone when the legislation was under consideration by Congress.”). Thus the

sole question here is whether appellants are “employees.” Finding the Act’s definitions

only so useful in advancing their analyses, courts have instead turned to the FLSA’s

legislative purpose for guidance. See, e.g., Bennett,

.

The FLSA was enacted to protect workers who operate within “the traditional

employment paradigm.” Harker,

. Persons in custodial detention—such

as appellants—are not in an employer-employee relationship but in a detainer-detainee

relationship that falls outside that paradigm. There are many crucial differences between

these two relationships. In the latter relationship, individuals are under the control and

supervision of the detention facility, which is simply not comparable to the “free labor

7 situation of true employment.”

Those in custodial detention, unlike workers in a free

labor market, “certainly are not free to walk off the job site and look for other work.” Id.;

see also

(“When a shift ends, inmates do not leave DOC supervision, but rather proceed

to the next part of their regimented day.”); Gilbreath v. Cutter Biological, Inc.,

(9th Cir. 1991). Put simply, “there is too much control to classify the [detainer-

detainee] relationship as one of employment.” Vanskike v. Peters,

(7th

Cir. 1992).

It is for that reason that the mere voluntariness of participating in a work program

or the transfer of money between a detainee and detainer does not manufacture a bargained-

for exchange of labor. There is an “exchange” in the normal sense of the word when money

moves from CoreCivic’s pockets to those of the detainees, but that exchange is not

“bargained-for.” Those in custodial detention “do not deal at arms’ length.” Harker,

; see also Alvarado Guevara,

. While a detainee may choose

whether or not to participate in a voluntary work program, they have that opportunity

“solely at the prerogative” of the custodian. Harker,

; see also Morgan v.

MacDonald,

(9th Cir. 1994) (“[The inmate] was in no sense free to

bargain with would-be employers for the sale of his labor; his work at the prison was merely

an incident of his incarceration.”). Such is the case here with the detainees’ participation

in the VWP.

Moreover, unlike workers in a free labor market who use their wages to maintain

their “standard of living” and “general well-being,”

(a), detainees in a

custodial institution are entitled to the provision of food, shelter, medicine, and other

8 necessities. See Harker,

; Vanskike, 974 F.2d at 810–11; Miller v. Dukakis,

(1st Cir. 1992). Like the inmates in Harker, CoreCivic is both morally and

legally bound to meet detainees’ basic needs, further undermining appellants’ claim that

the FLSA is applicable. In an effort to blunt this point, appellants contest the adequacy of

the food and other necessities that CoreCivic is contractually obligated to provide. But any

potential inadequacy of conditions is not appropriately remedied by applying the FLSA

wholesale to detainees. As the Seventh Circuit noted, it “is the jail's constitutional

obligation to provide [a detainee] with his basic needs, including adequate food and

drinkable water. When the jail fails to do so, it is that failure that must be remedied (the

Constitution demands it); it does not entitle him to receive minimum wage under the

FLSA.” Smith v. Dart,

(7th Cir. 2015). Such a conclusion makes good

sense. Hinging the FLSA’s application on the adequacy of mandated conditions would

lead to prolonged litigative uncertainty and leave everyone in limbo.

B.

Appellants attempt to characterize Harker as simply a case about criminal detention.

But our more recent decision in Matherly v. Andrews reaffirmed the principles of Harker

and foreclosed this contention.

(4th Cir. 2017). In Matherly, this court

rejected the civilly detained plaintiff’s request for the federal minimum wage. The claim

ran “head first into our FLSA jurisprudence” because: (1) the purpose of the program was

not to turn a profit; (2) Matherly’s “employment relationship with the BOP [wasn’t] the

product of a bargained-for exchange”; and (3) the prison provided detainees with food,

shelter, and clothing, “satisfying the underlying purpose of the FLSA’s minimum wage

9 provision.”

at 278 (citing Harker,

). Thus, the civil nature of appellants’

detainment is not dispositive.

Our circuit is hardly alone in refusing to expand the Act to custodial detentions.

Each circuit to address the issue—whether the litigants sought FLSA application for

inmates, or pretrial detainees, or civil detainees—has concluded that the FLSA’s

protections do not extend to the custodial context generally. See, e.g., Loving v. Johnson,

(5th Cir. 2006) (inmate labor); Bennett v. Frank,

(7th

Cir. 2005) (same); Gambetta v. Prison Rehab. Indus. & Diversified Enters., Inc.,

(11th Cir. 1997) (same); Danneskjold v. Hausrath,

, 43–44 (2d Cir.

1996) (same); Abdullah v. Myers,

(6th Cir. 1995) (same); McMaster v.

Minnesota,

(8th Cir. 1994) (same); Henthorn v. Dep’t of Navy,

, 686–87 (D.C. Cir. 1994) (same); Franks v. Okla. State Indus.,

, 973 (10th

Cir. 1993) (same); Gilbreath v. Cutter Biological, Inc.,

(9th Cir. 1991)

(same); see also Smith v. Dart,

(7th Cir. 2015) (pre-trial detainee labor);

Tourscher v. McCullough,

, 243–44 (3d Cir. 1999) (same); Villarreal v.

Woodham,

, 206–07 (11th Cir. 1997) (same); see also Sanders v. Hayden,

(7th Cir. 2008) (civil detainee labor); Miller v. Dukakis,

(1st

Cir. 1992) (same); Williams v. Coleman,

(9th Cir. 2013) (same).

Such a weight of authority is not easily dismissed. Failing in their distinction

between criminal and civil detainment, appellants highlight that they are being detained for

immigration purposes, noting that “[c]ivil immigration detention is not punitive or

corrective.” J.A. 10. But the fact that appellants are being held specifically for immigration

10 purposes does not alter our analysis. Neither Harker nor Matherly turned on the reason for

the custodial detention but rather the fact of it. Appellants are detained pending

administrative immigration proceedings and cannot leave the facility without authorization

from ICE. As explained above, the custodial detention context is inconsistent with the free

labor market envisioned by the FLSA, and the amassed authority of our sister circuits

demonstrates that logic applies to institutional confinements generally. See, e.g., Miller,

(civil detainee); Villarreal,

(pretrial detainee).

Indeed, to find that detention for immigration purposes could render a detainee an

“employee” for purposes of the FLSA would create a split with the Fifth Circuit, which has

addressed this issue head-on. See Alvarado Guevara v. I.N.S.,

(5th Cir. 1990)

(per curiam). Considering the Act’s purpose, the Fifth Circuit found that “current and

former alien detainees of the INS whom Defendants employed in grounds maintenance,

cooking, laundry and other services at the rate of one dollar ($1.00) per day” were not

“employees” for purposes of the FLSA.

at 395–96. Thus, to hold with appellants would

require us to not only contravene our own precedent but would also create a conflict in a

context where uniformity is favored.

Appellants argue finally that the FLSA’s aim of combatting unfair competition in

the marketplace is implicated because the detention facility happens to be operated by a

for-profit, private entity. See

(a). But whatever merit this observation

possesses as a matter of policy cannot dictate its adoption as a proposition of law. Other

circuits have held that the nonemployee-status of detainees is not altered by the private,

for-profit nature of the detention facility. See, e.g., Bennett,

(“The Fair

11 Labor Standards Act is intended for the protection of employees, and prisoners are not

employees of their prison, whether it is a public or a private one.”). While detentions may

well have an incidental monetary aspect, their aims are not primarily economic ones. “The

purpose of [appellants’] detention is to ensure their presence during the administrative

process and, if necessary, to ensure their availability for removal from the United States.”

J.A. 10 (Appellants’ Class Action Complaint). The fact that CoreCivic would have to hire

nondetainees for such work without detainees’ participation does not eliminate the non-

pecuniary goals of the VWP. As with the work programs in Harker and Matherly, the

VWP’s aim of reducing the “negative impact of confinement . . . through decreased

idleness, improved morale and fewer disciplinary incidents” remains intact. J.A. 155

(Voluntary Work Program pamphlet); see also Abdullah, 52 F.3d at *1 (“The fact that the

prison in which Abdullah is incarcerated is managed by a private contractor does not render

the interest served by providing work for the inmates into a pecuniary rather than a

rehabilitative one. Under either scenario [whether the institution is public or private],

services not performed by prisoners would have to be obtained at a greater expense.”).

Our point is emphatically not one of advocacy for any method of detention or

custody. It is simply not within this court’s authority to amend statutes from the bench.

The FLSA was a congressional creation, and its expansion is a matter for Congress as well.

What appellants propose is a fundamental alteration of what it means to be an “employee.”

Appellants are not employees in the free labor market contemplation of the Act, and we

are powerless to make them so. If Congress wishes to apply the FLSA to custodial

detentions, it is certainly free to do so. But the corollary is that courts are not.

12 III.

For the foregoing reasons, we affirm the judgment.

AFFIRMED

13