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Nevada can’t duck suit on prison guard pay, court rules

Updated October 17, 2019 - 7:38 pm

CARSON CITY – A three-judge federal appeals panel has ruled the state of Nevada cannot claim blanket immunity to escape liability in a nearly five-year legal dispute over wages brought by hundreds of prison guards against the state Department of Corrections.

The unanimous ruling issued Wednesday by the panel of the Ninth U.S. Circuit Court of Appeals in San Francisco upholds an earlier finding in the case by a federal judge in Reno and leaves the state open to monetary damages for back wages potentially in the tens of millions of dollars.

Some 542 current and former corrections officers have opted into the lawsuit but more than 3,000 workers could be affected. A decision in their favor could require the state to make overtime payments to officers for every shift worked dating back to 2011.

A spokeswoman for Attorney General Aaron Ford said the state was reviewing the case and weighing its options. The case was initiated under Ford’s predecessor, Adam Laxalt.

The plaintiffs originally brought the lawsuit in state court, claiming under federal labor law that they should be paid for work done immediately before and after their assigned shifts, such as attending briefings and inspections.

The state asked to move the case to federal court then later claimed constitutional immunity granted to states in certain legal circumstances under the 11th Amendment. The state made its immunity claim several years into the long-running legal proceeding.

The lower court in Reno ruled in March 2018 that the state waived immunity when it sought to have the case moved from state to federal court. The appellate panel heard arguments last March and upheld that ruling Wednesday, citing and expanding on an earlier Ninth Circuit decision in a case involving California, where the court chastised that state for seeking to game the system by switching venues.

“A state defendant that removes a case to federal court waives its immunity from suit on all federal-law claims brought by the plaintiff,” the appellate panel ruled, noting also the time lag before the state claimed immunity. The ruling sends the case back to the federal court in Reno.

Ford was elected Attorney General in 2018 and took office in January. Joshua Buck, attorney for the corrections officers, said plaintiffs and the state had not met to discuss a possible settlement since Ford took over from Laxalt.

“This is not Gov. Sisolak’s problem. It’s not Mr. Ford’s problem,” Buck said. “We’re always interested in trying to resolve the case. Our first and foremost goal is to get these employees paid at least some of what they’re owed.”

Contact Bill Dentzer at bdentzer@reviewjournal.com or 775-461-0661. Follow @DentzerNews on Twitter.

Walden v. State of Nevada by SteveSebelius on Scribd

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