An Update for Federal, State, and Private Prison Contractors      Vol. 2, Issue 8  November/December 2001


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A R T I C L E S





Federal Privatization

Supreme Court Hears Arguments in Private Prison Case

On October 1st, the Supreme Court opened its new term by hearing oral arguments in a case that could have a profound effect on the private prison industry. The Court’s ruling in Correctional Services Corporation v. Malesko will likely define the scope of liability that private prisons possess in defending against tort claims by prisoners. Specifically, the Court will likely decide whether certain defenses used by the government can also be used by private prisons.

Mr. Malesko, an inmate in a Correctional Services Corporation (“CSC”) facility, brought suit against CSC for constitutional violations related to an incident where Mr. Malesko suffered a heart attack. Mr. Malesko alleged that, despite a diagnosis that he suffered from congestive heart failure, he was forced to climb five flights of stairs at a quick pace. During this climb, he suffered a heart attack.

The District Court dismissed the case, stating that Mr. Malesko could sue the individuals involved with the alleged constitutional violation, but he could not sue a corporation under this theory. However, the Second Circuit Court of Appeals reversed the District Court’s decision and reinstated the case. The Second Circuit stated that although government agencies are exempt from suits in these cases, this exemption does not extend to private prisons that contract with the federal government (for an in-depth analysis of the Second Circuit’s decision, please see the March 2001 issue of the Corrections Contractor).

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Legislative Update

DOJ Appropriations Bills Move to Conference Committee

Recently, both the U.S. Senate and the House of Representatives passed their versions of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act for Fiscal Year 2002. The bill now moves on to a conference committee, where the Senate and House versions of it will be reconciled.

At this time, significant differences remain between the two bills as they relate to BOP construction. For example, the Senate has appropriated $25.8 million for construction and renovation of prisoner-holding space, while the House has only allocated $6.6 million for these services. This issue will need to be resolved by the conference committee. Similarly, the Senate and House versions of the bill differ with regard to INS facility construction. For example, the Senate bill allocates $205 million for planning, construction, and renovation of INS facilities (including detention facilities), while the House bill only appropriates $128.5 million. However, it is important to note that the Senate passed their legislation after the tragedies of September 11, 2001, while the House passed their version in July. Given the terrorist attacks against New York and Washington, it is likely that the final funding approved by the conference committee will be closer to the Senate bill than the House bill.

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Questions & Answers

Employment Law Issues Pertaining to Military Reservists and National Guard Members

IIn the wake of the recent attacks in New York City and Washington, D.C., President Bush has authorized the mobilization of 50,000 military reservists and National Guard members. Under this mobilization, up to one million citizen-soldiers may be called to active duty, although the military expects a much smaller mobilization. Many of these reservists work for correction contractors

In light of this mobilization effort, we have received several inquiries regarding an employer’s obligations and rights with regard to reservists and National Guard members.

Some of the most frequently asked questions are as follows:

What legal protections are available to employees who are called to military service?

The Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. ' 4301 et seq. (“USERRA”) prohibits discrimination against any person obligated to perform uniformed military service. Such protection applies to initial employment, re-employment after military service, retention in employment, promotion, or any other benefit of employment.

Must persons returning from extended military service be re-employed?

Generally, yes. The USERRA protects any employee who must be absent from civilian employment because of active duty military service, when such an employee provides advance written or oral notice to the civilian employer; the cumulative length of the employee’s military absence does not exceed five years; the employee returns to work within the period prescribed by law, or submits a timely application for re-employment; and the character of the employee's service does not disqualify him or her for re-employment. It should be noted that several types of active duty military service, including involuntary service and service during a war or national emergency, are not included in calculating the five-year period.

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