Case 2:85-cv-04544-DMG-AGR Document 494 Filed 10/05/18 Page 1 of 25 Page ID
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 JENNY L. FLORES, et al.,
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Plaintiffs,
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v.

14 JEFFERSON B. SESSIONS, III,
15 U.S. Attorney General, et al.,
Defendants.
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Case No.: CV 85-4544-DMG (AGRx)
ORDER APPOINTING SPECIAL
MASTER/INDEPENDENT
MONITOR [363] [469] [470]

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ORDER APPOINTING AN INDEPENDENT MONITOR

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TABLE OF CONTENTS

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A. 

THE SPECIAL MASTER/INDEPENDENT MONITOR ................... 3 

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1. 

Appointment of the Monitor........................................................ 3 

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2. 

Authority of the Monitor.. ........................................................... 3 

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3. 

Term and Extensions.. ................................................................ 5 

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4. 

Limitation on the Monitor’s Powers........................................... 6 

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5. 

Diligence of Monitor. ................................................................. 6 

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6. 

Ex Parte Communications. ......................................................... 6 

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B. 

THE MONITOR’S ACCESS TO INFORMATION ............................ 7 

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1. 

Class Member Information. ........................................................ 7 

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2. 

Current Advisal Forms.. ........................................................... 15 

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3. 

Contracts with Service Providers and Licenses. ...................... 15 

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4. 

Legal Representative Organizations. ....................................... 15 

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5. 

Training by Defendants.. .......................................................... 16 

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6. 

Notice of Implementation Materials.. ....................................... 16 

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7. 

Inspection of Facilities. ............................................................ 16 

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C. 

SUPPORT AND COMPENSATION FOR THE MONITOR .......... 17 

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1. 

Support.. .................................................................................... 17 

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2. 

Compensation. .......................................................................... 17 

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D.  REPORTING TO THE COURT AND CLASS COUNSEL;
JUDICIAL REVIEW; DISPUTE RESOLUTION ....................................... 18 
1. 

Reporting to the Court.. ............................................................ 18 

2. 

Judicial Review. ........................................................................ 20 

3. 

Dispute Resolution .................................................................... 20 

E. 
MISCELLANEOUS PROVISIONS; RETENTION OF
JURISDICTION ............................................................................................ 21 

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1. 

Confidentiality of Information. ................................................. 21 

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2. 

Cooperation of Parties. ............................................................ 22 
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ORDER APPOINTING AN INDEPENDENT MONITOR

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3. 

Preservation of Materials. ........................................................ 22 

4. 

Retention of Jurisdiction; Amendments .................................... 22 

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-iiORDER APPOINTING AN INDEPENDENT MONITOR

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1

Plaintiffs initiated this action on July 11, 1985.

[Doc. # 1.]

On

2 January 28, 1997, the Court approved a class-wide settlement of this action
3 pursuant to Federal Rule of Civil Procedure 23 (“Flores Agreement” or
4 “Agreement”). [Doc. # 101 at 8–52.]
5

On June 27, 2017, the Court granted in part and denied in part Plaintiffs’

6 Motion to Enforce and Appoint a Special Monitor (“June 27, 2017 Order”). [Doc.
7 # 363.] In particular, the Court found that: (1) conditions at the U.S. Customs and
8 Border Protection (“CBP”) stations in the Rio Grande Valley sector (“RGV”
9 sector) did not comport with Paragraph 12A of the Flores Agreement;
10 (2) Defendants violated Paragraph 24D of the Agreement by failing to provide
11 Class Members1 with a list of legal services and the Notice of Right of Judicial
12 Review; (3) Defendants violated Paragraphs 14, 18, 19, and 23 of the Agreement
13 by failing to make and record continuous efforts to release Class Members and
14 place them in non-secure, licensed facilities; and (4) Defendants violated
15 Paragraphs 12A and 14 of the Agreement by failing to release Class Members
16 without unnecessary delay and/or timely place Class Members in licensed
17 facilities. See id. at 33–34. Instead of granting Plaintiffs’ request to appoint an
18 Independent Monitor at that time, the Court indicated it would appoint a Juvenile
19 Coordinator consistent with Paragraph 28A of the Flores Agreement.2 Id. at 3220 33.

In response to that Order, Defendants proposed the names of two

21 individuals—Henry A. Moak, Jr. from the CBP and Deane Dougherty from
22 Immigration and Customs Enforcement (“ICE”)—to serve in the role of Juvenile
23 Coordinator for their respective agencies. [Doc. # 368.] Thereafter, the Court
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1

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2

To the extent that a term is not explicitly defined in this Order, it shall have
the meaning provided in the Flores Agreement and/or the Court’s Orders enforcing
26 that Agreement.
The June 27, 2017 Order cited Paragraph 24A, but it was a typographical

28 error.
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ORDER APPOINTING AN INDEPENDENT MONITOR

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1 appointed Mr. Moak and Ms. Dougherty as the Juvenile Coordinators for CBP and
2 ICE, respectively, pursuant to Paragraph 28A of the Agreement. [Doc. # 371.]
3 The Court stated that if it was not satisfied with the progress made within
4 approximately one year of the appointment of the Juvenile Coordinators, it would
5 reconsider Plaintiffs’ renewed request for the appointment of an Independent
6 Monitor. [Doc. # 363 at 32–33.]
7

On July 19, 2018, Plaintiffs submitted numerous declarations from Class

8 Members and their relatives indicating that Defendants failed to comply with the
9 Court’s June 27, 2017 Order.3 [Doc. ## 463-1 to 463-9.] On July 27, 2018, the
10 Court held a status conference to discuss whether the Court should appoint an
11 Independent Monitor. [Doc. # 469.]
12

On July 30, 2018, the Court found that the Office of Refugee Resettlement

13 (“ORR”) breached the Flores Agreement by (inter alia): (1) detaining certain
14 Class Members in Shiloh Residential Treatment Center (“RTC”) in violation of
15 Paragraphs 6, 7, 8, and 19 and Exhibit 1 of the Agreement, (2) failing to timely
16 provide a written notice of reasons for placing a Class Member in a secure facility,
17 staff-secure facility, or RTC in violation of Paragraph 24C of the Agreement,
18 (3) placing certain Class Members in secure facilities in violation of Paragraph 21
19 of the Agreement, (4) administering psychotropic medication to Class Members at
20 Shiloh RTC in violation of Paragraphs 6 and 9 and Exhibit 1 of the Agreement,
21 and (5) undertaking certain policies that unnecessarily delay the release of Class
22 Members to custodians in violation of Paragraphs 14 and 18 of the Agreement
23 (“July 30, 2018 Order”). [Doc. # 470.] On August 27, 2018, Plaintiffs’ counsel in
24 a related matter filed a declaration from a mental health specialist, wherein she
25 attests that ORR has failed to transfer any Class Members out of Shiloh RTC or
26

3

Additionally, Juvenile Coordinator Henry Moak acknowledged that CBP’s
27 custodial records sometimes do not accurately reflect Class Members’ experiences
in the agency’s custody. [Doc. # 430-1 at 5.]
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1 modify the agency’s policies regarding the administration of psychotropic
2 medication to Class Members. See Cohen Decl. at ¶¶ 9–10, Lucas R., et al. v. Alex
3 Azar, et al., No. CV 18-5741 (C.D. Cal.) [Doc. # 64-1].
4

Because of the complexity of the Flores Agreement, the Court’s findings of

5 non-compliance, and ongoing disputes between the parties relating to the
6 implementation of the Flores Agreement, the Court finds that the appointment of a
7 Special Master and Independent Monitor is warranted. See Fed. R. Civ. P. 53(a);
8 Hook v. State of Ariz., 120 F.3d 921, 926 (9th Cir. 1997); United States v.
9 Suquamish Indian Tribe, 901 F.2d 772, 774–75 (9th Cir. 1990).
10 A.

THE SPECIAL MASTER/INDEPENDENT MONITOR

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1.

Appointment of the Monitor. The Court hereby appoints Andrea

12 Sheridan Ordin as the Special Master/Independent Monitor (“the Monitor”).
13

2.

Authority of the Monitor. The Monitor shall have the authority to

14 perform the following tasks, subject to the oversight of this Court:
15

a.

Monitor compliance with the Court’s June 27, 2017 and July 30, 2018

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Orders, and other Court orders issued during the Term (“the Court’s

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Orders”);

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b.

Meet with the Parties and their counsel and receive and/or hear

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evidence and legal arguments on issues pertaining to compliance with

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the Court’s Orders;

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c.

Make

findings

of

fact

and

prepare

formal

Reports

and

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Recommendations to the Court regarding achievement of the goals of

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monitoring and substantial compliance with the Court’s Orders;

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d.

Conduct such investigation, interviews, and site visits as are necessary

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to achieve the goals of monitoring or aid in the preparation of Reports

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and Recommendations;

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e.

Hire and retain others, including but not limited to independent
experts, specialists, associate attorneys, law clerks, paralegals, and/or
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interpreters (collectively “aides”), to assist the Monitor in the

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performance of her duties;

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f.

Direct the Parties to produce such information or documents as the

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Monitor deems relevant to achieve the goals of monitoring or to

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prepare Reports and Recommendations;

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g.

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implementation of the Court’s Orders, including this Order;
h.

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of the Court’s Orders; and
i.

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Preside over and facilitate mediations and/or settlement negotiations
between the Parties as to any issues pertaining to the implementation

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Resolve such disputes as may arise between the Parties regarding the

Advise and update the Court on the status of Defendants’ compliance
with the Court’s Orders.

While the Monitor shall have broad discretion regarding how to exercise her

14 authority, her responsibilities shall focus initially on monitoring compliance with
15 the June 27, 2017 and July 30, 2018 Orders, recommending measures to cure any
16 violations thereof, and mediating disputes relating to Defendants’ compliance or
17 non-compliance with those Orders. Pursuant to the July 27, 2018 Order [Doc. #
18 469], the Monitor shall also have the authority to review the declarations filed by
19 the Parties regarding conditions at Defendants’ facilities and recommend remedial
20 action, if necessary.
21

During the course of her monitoring duties, if the Monitor discovers

22 potential breaches of the Flores Agreement that are beyond the scope of the
23 June 27, 2017, July 27, 2018, or July 30, 2018 Orders, she shall bring them to the
24 Court’s and the Parties’ attention. The Court, in its discretion, may authorize the
25 Monitor to investigate the potential breaches, request briefing from the Parties
26 thereon, hold hearings or mediation relating thereto, and issue a Report and
27 Recommendation thereon to the Court if the matter cannot be resolved through
28 mediation.

The Monitor shall have the authority to gather information and
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1 documentation in furtherance of the monitoring function, as identified herein. The
2 Monitor shall have the duties, powers, and responsibilities detailed in this Order;
3 provided that if to accomplish her duties, the Monitor must undertake necessary
4 measures not specifically referred to herein or seek modifications to this Order due
5 to unforeseen circumstances, the Monitor is authorized to do so, as long as she has
6 informed the Court and the Parties of the nature of, and need for, such measures or
7 modifications, and received the Court’s written approval. Should the Monitor
8 determine that such measures or modifications are necessary, the Parties shall
9 receive notice and an opportunity to comment or object (or to submit a stipulation
10 and proposed order) before the Court approves such measures.
11

3.

Term and Extensions. The Court appoints the Monitor for a term of

12 12 months (“Initial Term”) commencing on October 17, 2018 (the “Effective
13 Date”). The Initial Term may be extended (“Extended Term”)4 if, at least four (4)
14 weeks before the expiration of the Initial Term, any of the Parties and/or the
15 Monitor file with the Court a Notice requesting an extension of the Monitor’s term
16 for an additional term based on specific and ongoing concerns regarding
17 Defendants’ compliance with the June 27, 2017 and/or July 30, 2018 Orders, or
18 other Orders that the Court may issue within the Term. The Notice shall identify
19 an appropriate extension of time in order to ensure that the goals of the monitoring
20 are met.5 The Parties shall have the right to respond to any such Notice filed by the
21 Monitor within 10 days after the Notice’s filing. Opposing Parties and the Monitor
22 shall have the right to respond to any such Notice filed by a Party within 10 days
23 after the Notice’s filing. The Parties and/or the Monitor may apply for additional
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4

The Initial Term, together with any Extended Terms, shall collectively be
referred to as “the Term.”
5

The goals of the monitoring include ensuring Defendants’ ongoing
27 substantial compliance with the June 27, 2017 and July 30, 2018 Orders, and that
such substantial compliance will continue without the presence of the Monitor.
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1 extensions under the same standard by filing a Notice requesting an extension no
2 later than four (4) weeks before the end of any Extended Term. Absent a showing
3 of serious, specific, and ongoing concerns by the Parties and/or the Monitor, the
4 presumptive end of the Term shall be no later than 36 months after the Effective
5 Date.
6

4.

Limitation on the Monitor’s Powers. The Monitor may not issue any

7 orders or impose any sanctions, but may recommend to the Court various orders
8 pertaining to the goals of monitoring, including any contempt sanction, provided
9 that the Parties are given notice and an opportunity to respond. The Monitor shall
10 have no authority to intervene in or direct Defendants’ activities.
11

5.

Diligence of Monitor. The Monitor is directed to proceed with all

12 reasonable diligence to carry out the duties assigned by the Court.
13

6.

Ex Parte Communications. The Monitor shall be permitted to engage

14 in ex parte communications under the following circumstances:
15

a.

The Court. The Monitor shall be permitted to confer ex parte

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with the Court regarding any issue arising under or relating to

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this Order. All such communications shall be privileged and

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shall not be subject to discovery.

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b.

The Parties. The Monitor shall be allowed to engage in ex

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parte communications with the Parties’ counsel who have been

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designated as the “primary contacts,” Defendants’ “points of

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contact,” and the Juvenile Coordinators relating to the

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performance of her duties. Prior to the Effective Date, each

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side shall designate its primary contact and notify the Monitor

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of that person’s contact information.

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c.

Class Members or their Representatives. The Monitor shall be

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allowed to speak with Class Members or their Representatives.

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The Parties shall meet and confer with the Monitor regarding a
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Detention Facility Notice which shall be disseminated to all

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detention centers where Class Members may reside and which

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will include email contact information for the Monitor in the

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event a Class Member or his or her parent or Representative6

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wishes to report a problem with compliance with the Court’s

6

Orders.

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d.

For all ex parte

Notice of Ex Parte Communications.

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communications of a substantive nature during the applicable

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Reporting Period (as defined infra in note 7), except those with

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the Court, the Juvenile Coordinators, and the Parties’ primary

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contacts, the Monitor shall provide a list of the parties involved

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and the date of the ex parte communication in the Monitor’s

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Reports and Recommendations to the Court.

14 B.

THE MONITOR’S ACCESS TO INFORMATION

15

1.

Class Member Information.

The Monitor’s authority to gather

16 information and documentation in furtherance of the monitoring function includes
17 the following non-exhaustive methods of obtaining information regarding Class
18 Members:
19

a.

Interviews. The Monitor may from time to time interview any

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individual

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contractors, and subcontractors, and the agents or employees of

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such contractors or subcontractors) she believes possesses

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information relevant to Defendants’ compliance with the

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Court’s Orders, including: (i) any individuals responsible for

25

implementing or issuing policies concerning the Flores

(including

Defendants’

employees,

agents,

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27
28

6

Representatives include attorneys and representatives who represent Class
Members and are accredited by the Board of Immigration Appeals.
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Agreement; (ii) any individuals acting in any supervisory

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capacity over individuals implementing the Flores Agreement,

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including individuals responsible for training or supervising,

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ICE officers, ORR personnel, or detention facility officials; (iii)

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any Representatives of Class Members; and (iv) any former or

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current Class Member or former or current Class Member’s

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relatives or accompanying adults (provided that the interviewee,

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or her or his

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interview). Defendants shall provide the Monitor a point of

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contact or points of contact from CBP, ICE, the U.S.

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Citizenship and Immigration Service, the Executive Office of

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Immigration Review, and ORR, along with contact information

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for

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subcontractors who are involved in implementing the Flores

15

Agreement. The Monitor may from time to time confer with

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those points of contact. If requested, Defendants shall provide

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suitable facilities and arrangements for the conduct of such

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interviews under conditions satisfactory to the Monitor. The

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Monitor may, in her discretion, invite the Parties’ primary

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contacts to attend such interviews.

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b.

Representative, does not object to such an

Defendants’

employees,

agents,

contractors,

and

Requests for Documents. From time to time, the Monitor may

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serve

requests

for

any

non-privileged

information

or

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documents, or class of documents, created, received or

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maintained by Defendants or their employees, agents,

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contractors, or subcontractors that is directly relevant to a

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determination of compliance with the Court’s Orders.

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Monitor must provide Defendants with a Notice reasonably

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describing the documents sought and the reason for such

The

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requests, and shall make reasonable efforts to ensure that the

2

requests are in accordance with Federal Rule of Civil Procedure

3

26(b). Any such Notice shall be filed on the docket. The

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Monitor shall consider the burden such requests for information

5

or documentation will cause Defendants.

6

provide the documents sought unless the documents are not

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relevant to any issue arising from their compliance with the

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Court’s Orders. Any dispute regarding such a request shall be

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heard in the first instance by Hon. Alicia G. Rosenberg, United

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States Magistrate Judge. Class Counsel shall have a right to

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participate in any proceedings regarding disputed requests for

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documents. Any dispute between the Parties shall be presented

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to Judge Rosenberg in a joint stipulation in conformity with

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Local Rule 37 and this Court’s Orders, including this Order.

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c.

Defendants shall

Class Member Statistics. The Monitor may, in her discretion,

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request information from Defendants, including but not limited

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to information stored in Defendants’ e3 Detention Module

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(“e3DM”)

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confinement in the RGV sector, as well as the following

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database information for all Class Members:

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i.

relating

to

Class

Members’

conditions

of

Identifying Information and Detention History:

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(i) Full name, (ii) alien #, (iii) date of birth, (iv) country

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of birth, (v) name and alien # of accompanying relative

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(if any), (vi) date and location of apprehension,

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(vii) dates, locations, and reasons for all transfers of

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Class Members, (viii) if the Class Member was not

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released under Paragraph 14 of the Agreement or placed

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pursuant to Paragraphs 12A(3) and/or 19 of the
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Agreement within 20 days of apprehension, the reason

2

why the Class Member was not released under Paragraph

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14 of the Agreement or placed under Paragraph 12A(3)

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and/or 19 of the Agreement, (ix) if the Class Member

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was not released pursuant to Paragraph 14 of the Flores

6

Agreement, the date on which the Class Member was

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placed in one of Defendants’ facilities and the name and

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location of the facility, (x) whether a licensed

9

psychologist or psychiatrist has determined that the Class

10

Member poses a risk of harm to self or others and, if so,

11

the date on which this determination was made, the

12

identity of the psychologist or psychiatrist who made that

13

determination, and the basis for that determination,

14

(xi) if the Class Member is detained at Shiloh RTC and

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is being administered any psychotropic medication, then

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(a) the name of the prescribed medication(s), (b) the

17

dosage of those medication(s), (c) the identities and

18

qualifications of the individual(s) prescribing them, (d)

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the basis for diagnosis, (e) whether, on which date(s), and

20

from whom ORR has obtained informed written consent

21

in accordance with 26 Texas Administrative Code

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sections 748.2001 and 748.2253 for the administration of

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the psychotropic medication(s), (f) whether and, if so, on

24

which date(s) ORR obtained a court order in accordance

25

with Texas law authorizing the administration of the

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psychotropic

medication(s),

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psychotropic

medication(s)

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because of an “emergency” as that term is defined in

and

(g) whether

was/were

the

administered

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Texas Family Code section 266.009 and 26 Texas

2

Administrative Code section 748.2257 and, if so, the

3

basis for that determination, the date(s) on which it was

4

made, and the identity and qualifications of the

5

individual(s) making it;

6

ii.

Information Regarding CBP Detention:

(i) The

7

number of hours the Class Member spent in a CBP

8

facility following arrest, (ii) the size of CBP cells where

9

the Class Member was detained and the largest number

10

of detainees held in the cell while the Class Member was

11

detained therein, (iii) the content and number of meals

12

and drinks provided to the Class Member while in CBP

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custody, (iv) whether the Class Member was provided

14

with toiletries and towels while in CBP custody,

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(v) temperature recordings taken while the Class Member

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was detained, (vi) whether the Class Member was

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provided with a blanket and mat or mattress to sleep on if

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held overnight in a CBP facility, and (vii) whether the

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Class Member was provided with a notice of her or his

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rights as required by Paragraphs 12A and 24D of the

21

Agreement;

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iii.

Continuous

Efforts

at

Release

Pursuant

to

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Paragraph 14 of the Agreement:

(i) The dates on

24

which the option for release was explained by

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Defendants’ employees to Class Members or their

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accompanying parents, the names of the officers who

27

provided the information, the location where the

28

information was provided, and the dates on which the
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information was provided, (ii) the dates on which a Class

2

Member’s parent opted her or his Class Member child

3

out of the release provisions of the Agreement, (iii) the

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dates on which efforts were made and recorded by

5

Defendants’ employees to release the Class Member

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pursuant to Paragraph 14 of the Settlement, and the

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names, titles, and locations of the person(s) who made

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such efforts, (iv) identities of relatives, friends or

9

licensed group homes contacted for release or placement

10

of the Class Member under Paragraph 14, and the dates

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of such contacts, and names, titles, and locations of

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Defendants’ employees who made the contacts, and

13

(v) the results of efforts aimed at release of the Class

14

Member pursuant to Paragraph 14 of the Settlement;

15

iv.

Continuous

Efforts

at

Placement

Pursuant

to

16

Paragraph 19 of the Agreement: (i) The dates and

17

nature of efforts made and recorded that are aimed at the

18

placement of the Class Member pursuant to Paragraph 19

19

of the Agreement, (ii) the name and location of licensed

20

group homes contacted for placement of the Class

21

Member under Paragraph 19 of the Agreement, and the

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names, titles, and locations of the person(s) who made

23

such contacts, and (iii) the results of efforts aimed at the

24

placement of the Class Member pursuant to Paragraph 19

25

of the Agreement, including the dates and locations of

26

placements of the Class Member under Paragraph 19 of

27

the Agreement;

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v.

Placement of Class Members in Secure Facilities

2

Under Paragraph 21 of the Agreement: (i) The dates

3

on which a Class Member was held in or transferred to a

4

State or county juvenile detention facility or a secure

5

detention facility or contracted facility (collectively

6

“secure facilities”), (ii) the reasons why the Class

7

Member was transferred to a secure facility, (iii) the

8

names of the facilities to which the Class Member was

9

transferred, (iv) the reasons why the Class Member was

10

not transferred out of that facility pursuant to the

11

July 30, 2018 Order, and (v) the date on which the Class

12

Member was released (if no longer detained) or

13

transferred to a non-secure placement;

14

vi.

Provision of Notices of Rights: (i) The dates on which

15

Class Members were provided with a notice of their

16

rights pursuant to Paragraph 12A of the Agreement,

17

including the names, titles, and locations of Defendants’

18

employees who provided the notice of rights, (ii) the

19

dates on which Class Members were provided with

20

written notices of the reasons under Paragraph 24C of the

21

Agreement for housing the minor in a detention facility,

22

medium security facility, secure facility, staff-secure

23

facility, or RTC, (iii) dates on which, pursuant to

24

Paragraph 24D of the Agreement, Class Members were

25

provided (a) an INS Form I-770, (b) an explanation of the

26

right of judicial review as set out in Exhibit 6 to the

27

Agreement, and (c) the list of free legal services available

28
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1

in the district pursuant to Defendants’ regulations (unless

2

previously given to the Class Member);

3

vii.

Released Class Member Statistics:

For each Class

4

Member who has been released from detention, in

5

addition to the information mentioned above: (i) the date

6

of release, (ii) the number of days in detention prior to

7

release, (iii) the location of release, (iv) the name,

8

relationship, telephone number, and address of the person

9

or licensed group home to whom the minor was released

10

and (if applicable) that person’s relationship to the minor,

11

(v) whether the Class Member was re-detained, (vi) the

12

date of re-detention, (vii) the location of re-detention, and

13

(viii) the reason for the re-detention; and

14

viii. Compliance with Paragraph 28A of the Agreement:

15

Documents showing that pursuant to Paragraph 28A of

16

the Agreement, one or more of Defendants’ designated

17

officials have maintained an up-to-date record of all

18

minors who remain in Defendants’ custody for longer

19

than 72 hours.

20

d.

Data Concerning Emergencies or Influxes. On a monthly

21

basis commencing with the Effective Date, Defendants shall

22

provide the Monitor with statistics (in the form of a searchable

23

electronic file such as an Excel file) on (i) the number and

24

location by CBP station of Class Members in the RGV sector

25

who presented themselves for admission or were apprehended,

26

(ii) the numbers of Class Members identified in (i) who were

27

either placed in expedited removal or were issued Notices to

28

Appear (“NTAs”) in regular removal proceedings, (iii) the
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1

number of Class Members identified in (ii) who were released

2

or placed pursuant to Paragraphs 14 or 19 of the Agreement

3

before being transferred to ICE custody because they were

4

issued NTAs, and (iv) the number of CBP agents assigned to

5

the stations where the apprehensions identified in (i) took place.

6

On a monthly basis commencing with the Effective Date,

7

Defendants shall provide the Monitor with reports regarding

8

emergencies described in Paragraph 12B of the Agreement,

9

including the nature of and response to the emergency.

10

2.

Current Advisal Forms.

By the Effective Date, Defendants shall

11 provide the Monitor with all forms advising Class Members of their rights that are
12 used at Defendants’ facilities. Throughout the Term, Defendants shall promptly
13 provide to the Monitor updated forms if they are changed in any way.
14

3.

Contracts with Service Providers and Licenses. By the Effective

15 Date, Defendants shall provide the Monitor with copies of their current contract(s)
16 with entities for the detention of Class Members and licenses issued for the
17 operation of such entities implicated in the Court’s Orders. If entities with which
18 Defendants have contracted have in turn subcontracted with other entities to
19 perform detention functions for Class Members, Defendants shall provide copies of
20 current versions of those subcontracts and any licenses issued to such
21 subcontractors. Defendants shall promptly provide updates to the Monitor if any
22 contracts, subcontracts, or licenses mentioned in this paragraph change during the
23 Term or if there are proposed amendments or renewals of such contracts,
24 subcontracts, or licenses.
25

4.

Legal Representative Organizations. By the Effective Date, and once

26 every three (3) months thereafter until the expiration of the Term, Defendants shall
27 provide the Monitor with a list of all organizations listed in their list of free legal
28 services provided to detained Class Members or their accompanying relatives by
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1 Defendants’ officials. Defendants shall promptly provide updates if those lists
2 change during the Term.
3

5.

Training by Defendants. Defendants shall provide the Monitor with

4 the categories of individuals trained to implement the Flores Agreement, including
5 the individuals’ titles and duty locations, the dates of trainings, and all final
6 training materials bearing upon implementation of the Flores Agreement. The
7 dates and locations of all such trainings shall be provided to the Monitor at least
8 ten (10) days prior to the training dates and the Monitor may attend any such
9 trainings. In her discretion, the Monitor may invite the parties’ representatives to
10 join her. The Monitor may also in her discretion attend formal meetings of any
11 task force or implementing group of Defendants or their appointees, designees,
12 contractors, or subcontractors regarding implementation of the Agreement.
13

6.

Notice of Implementation Materials.

By the Effective Date,

14 Defendants shall provide the Monitor with any non-privileged final copies of any
15 regulations, policy directives, manual sections, guidance, memoranda, instructions,
16 orders, and other non-privileged implementation materials aimed at compliance
17 with the Flores Agreement and the Court’s Orders. Defendants shall promptly
18 provide updates to the Monitor if any such implementation materials change at any
19 time during the Term.
20

7.

Inspection of Facilities. The Monitor shall have the right to conduct

21 reasonable inspections of detention facilities implicated in the Court’s Orders used
22 by, contracted with, or acting on behalf of Defendants to hold Class Members.
23 With or without prior notice, the Monitor shall have the right to tour and inspect
24 Defendants’ detention facilities and interview staff (including Defendants’
25 employees), Class Members, and their accompanying relatives to assess
26 compliance with the Court’s Orders. Class Members and their accompanying
27 relatives may elect not to be interviewed by the Monitor. Class Counsel and
28 Defendants’ counsel or designated representatives may, at the discretion of the
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1 Monitor, be present during site inspections and interviews.

Defendants shall

2 designate one or more persons the Monitor may contact to promptly address any
3 access or inspection issues that may arise during the course of a site inspection.
4 C.

SUPPORT AND COMPENSATION FOR THE MONITOR

5

1.

Support. The Monitor may, as she deems necessary to carry out her

6 functions, seek assistance from aides whose services the Monitor deems important
7 to performing her duties. Prior to retaining the services of an independent expert,
8 however, the Monitor must consult with the parties and the Court and provide an
9 explanation of the need for such expert, and his or her qualifications. Thereafter,
10 the Court shall make a determination of whether to authorize the retention of the
11 expert. The parties may request background information regarding other aides to
12 the extent necessary to conform to any statutes or regulations.
13

2.

Compensation.

All of the Monitor’s fees, costs, and expenses,

14 including those with respect to aides, are to be paid by Defendants. See Fed. R.
15 Civ. P. 53(g)(3) (providing that courts should consider several factors when
16 allocating payment among the parties, including “the extent to which any party is
17 more responsible than other parties for the reference to a master”). The Monitor
18 shall be compensated at the hourly rate of $250 during the first year of the Term,
19 $275 during the second year and, if necessary, $300 during the third year. The
20 services of the Monitor’s aides shall be billed at a rate not to exceed $125 per hour.
21 The Monitor is entitled to reimbursement for all reasonable expenses incurred. On
22 a monthly basis, the Monitor shall provide Defendants with a detailed record of
23 hours billed and expenses incurred in the preceding month. If Defendants dispute
24 a bill from the Monitor, they shall have 15 days to review and submit objections to,
25 and/or request additional clarifying information or documentation from the
26 Monitor, with a copy served on Class Counsel and filed with the Court. If within
27 30 days of presentation of the Monitor’s bill, there is still a dispute, Defendants
28 shall submit the dispute to the Court for resolution. Defendants and the Monitor
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1 shall prepare a joint statement regarding the disputed payment for filing within 30
2 days after Defendants’ receipt of the Monitor’s bill. If the Monitor anticipates that
3 her annual compensation, costs, and expenses shall exceed $300,000 per year, she
4 shall notify the Parties and the Court, preferably within six months after the
5 Effective Date, and make a showing of good cause and provide an estimate of the
6 amount she anticipates will be required for her to properly perform the duties and
7 obligations set forth in this Order. Upon such notification, the Court shall set a
8 schedule that will permit the Parties to submit written comment.
9 D.

REPORTING TO THE COURT AND CLASS COUNSEL; JUDICIAL

10

REVIEW; DISPUTE RESOLUTION

11

1.

Reporting to the Court. The Monitor shall provide regular Reports

12 and Recommendations to the Court in the following manner:
13

a.

Within 90 days after the Effective Date, and every 90 days

14

thereafter through the end of the Term, the Monitor shall file on

15

the case docket a Report and Recommendation regarding

16

Defendants’ substantial compliance with the June 27, 2017 and

17

July 30, 2018 Orders, or other Court orders issued during the

18

Term, as well as any recommendations for steps necessary to

19

remedy any non-compliance. If necessary, the Monitor may

20

seek a reasonable extension of time to file her Report and

21

Recommendation.

22

Recommendation shall also discuss Defendants’ responses to

23

the declarations Plaintiffs filed on July 19, 2018 [Doc. ## 475

24

to 475-7] and Plaintiffs’ reply thereto [Doc. ## 481 and 481-1],

25

and opine on the extent (if any) to which Defendants have

26

rebutted Plaintiffs’ evidence. The geographical scope of the

27

Monitor’s duties shall not be expanded in the absence of a

28

Court Order, following a hearing on a duly noticed motion filed

The

Monitor’s

First

Report

and

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1

by Plaintiffs. The Monitor shall append to her Reports and

2

Recommendations any documents that the Monitor deems

3

important for the conclusions therein (“Appendix”).

4

applicable, the Monitor’s Reports and Recommendations may

5

also address any suspected breaches of the Flores Agreement

6

that have been brought to her attention but which are beyond

7

the scope of the June 27, 2017 and July 30, 2018 Orders. The

8

Monitor may, in her discretion, meet with the Parties to discuss

9

these suspected breaches and/or request briefing and evidence

10

and hold a hearing regarding (1) whether the scope of her

11

monitoring functions should be expanded to cover such

12

suspected breaches and/or (2) any proposals for curing them.

13

The parties shall file on the docket all documents submitted for

14

the Monitor’s consideration. The Monitor shall have the sole

15

discretion to determine the appropriate procedures for briefing

16

and hearing arguments and evidence regarding such suspected

17

breaches, so long as those procedures and measures are not

18

inconsistent with this Order.

19

b.

If

At least twenty-eight (28) days before filing the Report and

20

Recommendation and Appendix on the case docket, the

21

Monitor shall serve the Parties with copies of each, and the

22

Parties shall have 10 days from the date of service to submit to

23

the

24

Recommendation. In her discretion, the Monitor may modify

25

the Report and Recommendation in any manner suggested by a

26

Party before filing it with the Court, although the Monitor has

27

no obligation to explain her response (or lack thereof) to any

Monitor

written

comments

to

the

Report

and

28
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suggestions.

2

comments together with the Report and Recommendation.

3

c.

The Monitor shall file the Parties’ written

If the Monitor has a good faith basis to believe that there is a

4

significant violation of the Court’s Orders that cannot

5

reasonably

6

Recommendation due to its exigency, the Monitor shall file on

7

the case docket an interim report and recommendation (“Interim

8

Report

9

recommendations for steps necessary to improve Defendants’

10

compliance and the reason for the urgency. Prior to filing the

11

Interim Report and Recommendation, the Monitor shall afford

12

the Parties a reasonable opportunity to be heard and to

13

expeditiously cure any violation.

14

d.

be

and

addressed

through

Recommendation”),

a

Report

including

and

any

Nothing in this Order limits the Monitor’s ability to notify the

15

Parties jointly of issues relating to the discharge of her duties

16

through reasonable means, including in-person or telephonic

17

meetings, status conferences, or correspondence.

18

anything in this Order limit the Monitor’s ability to promptly

19

notify the Parties of violations of the Court’s Orders that, due to

20

their exigency, should not be addressed on the normal timeline

21

for Reports and Recommendations.

22

2.

Nor shall

Judicial Review. The Court adopts the review procedures and time

23 lines set forth in Federal Rule of Civil Procedure 53(f) and incorporates them
24 herein by this reference.

Any Party seeking review of any finding or

25 recommendation of the Monitor shall comply with Rule 53(f).
26

3.

Dispute Resolution.

In the event Class Counsel alleges that

27 Defendants have failed to comply with the Court’s Orders, the following procedure
28 shall apply:
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1

a.

Class Counsel shall provide Defendants and the Monitor with a

2

written statement describing the alleged non-compliance and

3

specifying the portion(s) of the June 27, 2017 Order, the

4

July 30, 2018 Order, and/or this Order that Defendants

5

allegedly violated (“Notice of Non-Compliance”). Defendants

6

shall provide a written statement responding to the alleged

7

violation within 14 calendar days from receipt of the Notice of

8

Non-Compliance and, within 21 calendar days from the Notice

9

of Non-Compliance, counsel for the Parties shall meet and

10

confer in a good faith effort to resolve their dispute informally.

11

b.

In the event that the Notice of Non-Compliance cannot be

12

resolved informally within the time period set forth herein,

13

counsel for the Parties shall request that the Monitor mediate

14

the dispute. If the dispute has not been resolved within 14 days

15

of referral to the Monitor, Class Counsel may request that the

16

Court issue an order requiring compliance.

17

Monitor may file her recommendations concerning the dispute

18

within a time frame to be established after conferring with the

19

Court. In an emergency, Class Counsel may request that the

20

Monitor and the Court waive the time periods set forth in

21

Section D.3 of this Order.

22 E.

MISCELLANEOUS PROVISIONS; RETENTION OF

23

JURISDICTION

24

1.

Thereafter, the

Confidentiality of Information. The Protective Order governing this

25 litigation [Doc. # 270] shall continue to apply to all documents or information
26 produced by Defendants pursuant to this Order. Any individual who assists the
27 Monitor must agree to be bound by the terms of the Protective Order and execute
28 the Acknowledgment of Protective Order for Discovery. The Monitor may, in her
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1 discretion, share documents or information produced by Defendants with Class
2 Counsel to the extent it is in furtherance of the performance of her duties under this
3 Order.
4

2.

Cooperation of Parties. The Parties and the Juvenile Coordinators

5 shall cooperate in good faith with the Monitor to facilitate the performance of her
6 duties.
7

3.

Preservation of Materials. The Monitor shall preserve and, where

8 appropriate, file those materials reflecting the essential activities she and any of her
9 aides perform in carrying out the monitoring duties. The Monitor shall file on the
10 case docket all requests for modification of this Order and all status reports.
11

4.

Retention of Jurisdiction; Amendments. The Court retains jurisdiction

12 to enforce this Order and to amend it for good cause.
13
14 IT IS SO ORDERED.
15
16 DATED: October 5, 2018
17

DOLLY M. GEE
UNITED STATES DISTRICT JUDGE

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20
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22
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24
25
26
27
28
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