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Akal Security, Inc. v. U.S. Immigration and Customs Enforcement

July 9, 2010


The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge


Pending before the Court is Defendant U.S. Immigration and Custom Enforcement's ("ICE") motion to dismiss or, in the alternative, motion for summary judgment. Plaintiff Akal Security, Inc. ("Akal") opposes the motion.

The Court decides the matters on the papers submitted and without oral argument. See S.D. Cal Civ. R. 7.1(d.1). For the reasons stated below, the Court GRANTS ICE's summary-judgment motion and DENIES ICE's motion to dismiss as moot. (Doc. 4.)


ICE owns and operates the Department of Homeland Security ("DHS") ICE Processing Center located in El Centro, California (the "Facility"). (Oppo. [Doc. 6], at 5.) The Facility is one of eight prison-like immigration detention centers located throughout the United States that detains illegal aliens with criminal records prior to deportation. (Id.) Between January 1, 2003 and June 31 2009, Akal entered into a contract with ICE to employ security officers to staff the Facility (the "Contract"). (Id.)

On April 27, 2006, Akal was sued in California Superior Court in the matter entitled David Loera v. Akal Security, Inc., Imperial County Superior Court, Case No. ECU 03022. (Oppo. at 5.) The plaintiffs in the pending state-court action are former Akal security officers who worked at the Facility and are pursuing a class action based on the application of California wage and hour law to plaintiffs' meal periods, rest breaks, and overtime. (Req. [Doc. 1], at ¶4. Plaintiffs seek unpaid wages and statutory penalties in excess of $50,000,000. (Oppo. at 3.) Akal's defense to the claim is based on the exclusive application of federal law. (Req. at ¶5.) Specifically, Akal claims that because it was performing a federal function under the Contract, the application of California law constitutes an impermissible regulation of that federal function. (Id.) In the alternative, Akal claims its violations of California law were not wilful because it believed California law did not apply to the Facility based on statements made by ICE employees. (Oppo. at 3.)

To substantiate these defenses, Akal sought to obtain testimony from ICE personnel through informal discovery. (Req. at ¶ 15.) When ICE declined to cooperate, Akal issued state-court deposition subpoenas to six current and former ICE employees. (Id. at ¶ 16; Mot. at 2.) DHS, through its attorneys in the Office of Chief Counsel and the Office of Principal Legal Advisor, denied Akal's requests for testimony. (Mot. at 2.)

On October 14, 2009, Akal filed this Request for Administrative Relief, pursuant to 5 U.S.C. §§ 702-706 of the Administrative Procedures Act ("APA"), to compel compliance with five of the six subpoenas. Akal is requesting the Court compel ICE to produce the following five individuals to appear and provide deposition testimony: (1) Alan J. Barclay; (2) James Hayley; (3) Linda Holder; (4) Luis Allen; and (5)Robin F. Baker. (Id. at 4.)

The five witnesses were ICE employees during the Contract. (Req. at 13.) Additionally, each individual was directly involved in the operation of the Facility, and either directly or indirectly communicated with Akal personnel regarding the provision of security services under the Contract. (Id.) Akal, therefore, seeks the following testimony from the individuals:

(1) ICE officials, and specifically, Manuel de Leon and James Haley instructed Akal to restrict its security officers from leaving the premises during meal periods;

(2) The effect of enforcing California wage and hour laws at the Facility would require ICE to revise its Security Plan for the Facility, and its requirements of the private Contractor;

(3) ICE officials, specifically Linda Holder, Manual de Leon, and James Haley each believed that the Facility was a Federal Enclave and/or Federal Installation and that California law was generally inapplicable to the Facility, and communicated the same to Akal personnel. (Oppo. at 3.) Akal also requests that ICE be estopped from denying deposition subpoenas served on any other individuals who worked with Akal at the Facility and are relevant to the resolution of the pending state-court matter. (Req. at 4.)

On December 11, 2009, ICE filed this motion to dismiss or, in the alternative, for summary judgment. Akal opposes. Because the Court finds summary judgment is appropriate, the ...

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