William Burrell, Jr. v. Tom Staff

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 21-2846

__________

WILLIAM L. BURRELL, JR.; JOSHUA HUZZARD;

DAMPSEY STUCKEY

v.

TOM STAFF, Individually; LOUIS DENAPLES,

individually; DOMINICK DENAPLES; LACKAWANNA

RECYCLING CENTER INC; COUNTY OF

LACKAWANNA; LACKAWANNA COUNTY SOLID

WASTE MANAGEMENT AUTHORITY

William L. Burrell, Jr.; Joshua Huzzard; Dampsey Stuckey;

*Anthony Cravath; *Anthony John Goodwin, Sr.;

*Derrick M. Lake; *Eugene R. Taylor; *Ralph Wasko;

*Timothy Alan Whited; *Torrance Allen; *Gabriel Martinez;

and *Gerard Nelson,

Appellants

*(Pursuant to Rule 12(a), Fed. R. App. P.)

__________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(District Court Civil No. 3-14-cv-01891)

District Judge: Honorable Robert D. Mariani

Argued July 14, 2022

BEFORE: GREENAWAY, JR., MATEY,

and NYGAARD, Circuit Judges

(Filed: February 8, 2023)

Jacob Demree

Sanders K. Gilmer

Alessandra Lopez

Madeline Meth

Samuel Myers

Jacob Rosen

Daniel Wassim

Brian S. Wolfman

Georgetown University Law Center

Appellate Courts Immersion Clinic

600 New Jersey Avenue

Suite 312

Washington, DC 20001

Matthew K. Handley

Rachel E. Nadas

Handley Farah & Anderson

200 Massachusetts Avenue, N.W.

Seventh Floor

Washington, DC 20001

2

Marielle R. Macher

Community Justice Project

118 Locust Street

Harrisburg, PA 17101

Juno Turner [Argued]

Towards Justice

P.O. Box 371680

Pmb 44465

Denver, CO 80237

Counsel for Appellants

Philip A. Davolos, III

David E. Heisler [Argued]

Cipriani & Werner

415 Wyoming Avenue

Scranton, PA 18503

Counsel for Appellees Staff, County of Lackawanna

Jeffrey Belardi

Belardi Law Offices

50 Alberigi Drive

Suite 114, The TekRidge Center

Jessup, PA 18434

Christopher R. Nestor

David R. Overstreet [Argued]

Overstreet & Nestor

461 Cochran Road, P.O. Box 237

Pittsburgh, PA 15228

3

Counsel for Appellees L. DeNaples, D. DeNaples,

Lackawanna Recycling Center Inc.

Sarah R. Lloyd [Argued]

Cognetti & Cimini

538 Spruce Street

800 Scranton Life Building

Scranton, PA 18503

Counsel for Appellee Lackawanna County Solid Waste

Management Authority

Brianne J. Gorod

Constitutional Accountability Center

1200 18th Street, N.W., Suite 501

Washington, DC 20036

Counsel for Amicus Appellants Constitutional

Accountability Center, ACLU of Pennsylvania

Erin H. Flynn

Katherine E. Lamm [Argued]

United States Department of Justice

Civil Rights Division, Appellate Section

P.O. Box 14403

Ben Franklin Station

Washington, DC 20044

Counsel for Amicus Curiae United States of America

4

Catherine Ruckelshaus

National Employment Law Project

90 Broad Street, Suite 1100

New York, NY 10004

Counsel for Amicus Appellants Community Legal

Services of Philadelphia, Justice at Work

Pennsylvania, National Employment Law Project,

National Employment Lawyers Association,

Pennsylvania Institutional Law Project

__________

OPINION OF THE COURT

__________

NYGAARD, Circuit Judge.

Plaintiff child support debtor-civil contemnors brought

several claims against Lackawanna County, the County’s Solid

Waste Management Authority, Lackawanna County Recycling

Center, Inc. (the private corporation to which the Authority

outsources the operation of its Recycling Center, or the

“Corporation”) and the Corporation’s owners (brothers Louis

and Dominick DeNaples), arising out of plaintiffs’ nearly

unpaid labor at the Recycling Center. The District Court

dismissed all claims, and plaintiffs appealed. 1

1

Plaintiffs do not appeal the dismissal of their claims against

defendant Tom Staff, an administrator employed by

Lackawanna County who regulated the Work Release Program

and the Community Service Program at the Lackawanna

5

We will affirm dismissal of plaintiffs’ Thirteenth

Amendment and Pennsylvania Wage Payment and Collection

Law claims in full, and of their Trafficking Victims Protection

Act (“TVPA”) and Racketeer Influenced and Corrupt

Organizations Act (“RICO”) claims against the DeNaples

brothers. 2

However, we will reverse dismissal of their TVPA

claims against the County, the Authority, and the Corporation;

their RICO claims against the Corporation; their Fair Labor

Standards Act (“FLSA”) and Pennsylvania Minimum Wage

Act claims against the County, the Authority, and the

Corporation; and their unjust enrichment claims against the

County, the Authority, and the Corporation. 3

I. BACKGROUND

Plaintiffs William Burrell, Jr., Joshua Huzzard, and

Dampsey Stuckey were held in civil contempt and sentenced

to incarceration for not paying child support. They challenge

Lackawanna County’s policy of conditioning incarcerated civil

contemnor child support debtors’ access to regularly paid work

release on first working for half of their sentences sorting

County Prison. “All defendants” thus means the County, the

Authority, the Corporation, and the DeNaples brothers.

2

Plaintiffs do not appeal the dismissal of their RICO claims

against the County and the Authority.

3

Plaintiffs press their Fair Labor Standards Act claims on

behalf of a FLSA collective and the rest of their claims on

behalf of a Rule 23 class.

6

through trash at the Recycling Center, in purportedly

dangerous and disgusting conditions, for sixty-three cents per

hour (five dollars per day), nominally as “community service.”

Burrell first filed a complaint in September 2014 and a

First Amended Complaint (“FAC”) in December 2014, both

pro se, describing the County’s policy of conditioning work

release on work at the Center, the Center’s hazardous

conditions and subminimum wages, and alleging, as relevant

here, Thirteenth Amendment, TVPA, RICO, and state‐law

claims. Although Burrell did not expressly invoke FLSA, the

FAC alleged that he was paid five dollars per day to work forty

hours per week at the Center.

The District Court dismissed the amended complaint

before service of process. A panel of this Court affirmed in part

and vacated in part. Burrell v. Loungo, 750 F. App’x 149, 160

(3d Cir. 2018). The panel reversed the District Court’s

dismissal of Burrell’s TVPA and Thirteenth Amendment

claims because although Burrell alleged that “he had a

‘choice’—either work in the LRC or spend an extra six months

in prison—given the dearth of case law in this area, it is not

clear, especially at the screening stage, whether this ‘choice’

was sufficient to bring the alleged practice of coercing civil

contemnors to work in the LRC out of the range of involuntary

servitude.” Id. at 159–60 (cleaned up). The panel also said in a

footnote that

One might argue, of course, that as a civil

contemnor who would be released once he paid

his child support obligations, Burrell “carr[ied]

the keys of [his] prison in [his] own pockets.”

Turner v. Rogers, 564 U.S. 431, 441-42, 131

7

S.Ct. 2507, 180 L.Ed.2d 452 (2011). We leave it

to the District Court to consider such an

argument.

Id. at 160 n.7. Finally, the panel reversed the District Court’s

dismissal of Burrell’s RICO claims because that ruling was

based on dismissal of his Thirteenth Amendment and TVPA

claims—the alleged predicate violations of law for RICO

liability. Id. at 160.

On remand, Burrell obtained counsel and filed a Second

Amended Complaint (“SAC”), which added Huzzard and

Stuckey as plaintiffs and significantly refined its list of

defendants, its factual allegations, and its legal claims. The

SAC contends that conditioning plaintiffs’ access to work

release—which would have enabled them to earn the money

they needed to secure their freedom from incarceration—on

completing a period of sub-minimum-wage, dangerous, and

disgusting work at a private business amounted to involuntary

servitude and forced labor, in violation of the Thirteenth

Amendment 4 and the TVPA, 18 U.S.C. §§ 1589, 1595; 5 that

4

Plaintiffs press their Thirteenth Amendment claims via 42

U.S.C. § 1983.

5

§ 1595 creates a civil cause of action for victims of, inter alia,

a TVPA violation, “against the perpetrator []or whoever

knowingly benefits, financially or by receiving anything of

value from participation in a venture which that person knew

or should have known has engaged in an act in violation of this

chapter[.]” Id. § 1595(a). On January 5, 2023, Congress

enacted the Abolish Trafficking Reauthorization Act of 2022.

This amended the language in § 1595(a) to include a TVPA

8

defendants’ violations of the TVPA as an association in fact

was a pattern of racketeering activity under RICO, 18 U.S.C.

§ 1961(1), in violation of id. §§ 1962(c), 1964(c); that failure

to pay them the minimum wage for their work at the Recycling

Center violated FLSA’s minimum wage provision, 29 U.S.C.

§ 206(a)(1)(c), and the Pennsylvania Minimum Wage Act, 43

Pa. Stat. and Cons. Stat. § 333.104(a.1); that paying plaintiffs’

daily five dollar wage into their commissary accounts, rather

than in cash or check, violated the Pennsylvania Wage

Payment and Collection Law, id. § 260.2a; and that plaintiffs’

work at the Center unjustly enriched defendants.

After briefing, the District Court granted defendants’

motions to dismiss the SAC. The Court first held that the

Rooker-Feldman doctrine did not preclude its jurisdiction over

the TVPA and Thirteenth Amendment claims, so long as it did

not credit plaintiffs’ allegations that they could not pay their

purges (payment of which would effect compliance with their

contempt orders and get them out of prison). The Court then

concluded that plaintiffs’ Thirteenth Amendment and TVPA

claims failed, because the legal requirement that the state court

had to find that plaintiffs were able to pay their purges before

sentencing them to incarceration for civil contempt meant that

plaintiffs could have chosen to pay their purges and leave

prison rather than work at the Recycling Center. The Court also

dismissed plaintiffs’ RICO and unjust enrichment claims

because they were predicated on plaintiffs’ failed Thirteenth

violation, “against the perpetrator []or whoever knowingly

benefits, or attempts or conspires to benefit, financially . . ..”

See Pub. L. No. 117-347, 136 Stat 6199, 6200 (emphasis

added).

9

Amendment and TVPA claims. The Court finally dismissed

plaintiffs’ FLSA, Pennsylvania Minimum Wage Act, and

Pennsylvania Wage Payment and Collection Law claims

because plaintiffs failed to allege an employer-employee

relationship, an implied contract on wages to be paid, or a

breach thereof.

Though the District Court dismissed some claims

without prejudice, plaintiffs stood on their complaint and

sought final judgment, which the District Court issued.

Plaintiffs then timely appealed.

II. STANDARD OF REVIEW

Because this case arises from a motion to dismiss, we

conduct a plenary review of the District Court’s order granting

a motion to dismiss for failure to state a claim, Gelman v. State

Farm Mut. Auto. Ins. Co., 583 F.3d 187 (3d Cir. 2009), and

“accept as true the allegations of the complaint,” Mohamad v.

Palestinian Auth., 566 U.S. 449, 452 (2012).

III. DISCUSSION

A. Rooker-Feldman, Issue Preclusion, and

Changed Circumstances

1. Rooker-Feldman Doctrine

“In certain circumstances, where a federal suit follows

a state suit, the Rooker–Feldman doctrine prohibits the district

court from exercising jurisdiction. The doctrine takes its name

from the only two cases in which the Supreme Court has

applied it to defeat federal subject-matter jurisdiction[.]” Great

10

W. Mining & Min. Co. v. Fox Rothschild LLP, 615 F.3d 159,

163–64 (3d Cir. 2010). The doctrine is narrowly confined to

“cases brought by state-court losers complaining of injuries

caused by state-court judgments rendered before the district

court proceedings commenced and inviting district court

review and rejection of those judgments,” and “does not

otherwise override or supplant preclusion doctrine.” Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284

(2005).

“If a federal plaintiff presents some independent claim,

albeit one that denies a legal conclusion that a state court has

reached in a case to which he was a party, then there is

jurisdiction and state law determines whether the defendant

prevails under principles of preclusion.” Id. at 293. That

distinction has consequences: “Rooker-Feldman, unlike claim

and issue preclusion, implicates a federal court’s subject-

matter jurisdiction, meaning it cannot be forfeited or waived,

and courts must evaluate its applicability sua sponte if it is a

concern.” Vuyanich v. Smithton Borough, 5 F.4th 379, 385 (3d

Cir. 2021) (cleaned up).

Plaintiffs assert “that they had no option but to work at

the Center” and Burrell asserts “that he did not have the ability

to pay $2,129.43”—his purge amount. App. 62. Whether the

purge orders preclude us from entertaining those assertions is

a question subsidiary to plaintiffs’ claims. And the “ability to

pay” determination in the state court was merely a step towards

the state court orders’ ultimate purpose of ordering plaintiffs

incarcerated to coerce their payment of overdue child support.

As plaintiffs’ claims may deny conclusions reached by the state

court, but do not require review and rejection of the orders in

which those conclusions were reached, Rooker-Feldman does

11

not thwart federal jurisdiction. See Exxon Mobil Corp., 544

U.S. at 293.

2. Issue Preclusion

The purge orders implicate issue preclusion, which is

not a jurisdictional matter but instead an affirmative defense.

See Fed. R. Civ. P. 8(c). Plaintiffs correctly point out that issue

preclusion “has not yet been raised in this case.” Pls.’ Reply

Br. at 4–5 n.1. But they “do not challenge the state-court

ability-to-pay finding,” id., the only state court determination

relevant to plaintiffs’ claims. Instead, plaintiffs contend that

they “allege injuries caused by events occurring after the state-

court orders—their ever‐worsening financial circumstances

and Defendants’ exploitation of them,” and that their “financial

insecurity increased once detained.” Pls.’ Br. at 16–17. The

state court purge orders’ ability-to-pay findings were limited

by law to plaintiffs’ respective present abilities to pay at the

time the orders were entered. See Hyle v. Hyle, 868 A.2d 601,

605 (Pa. Super. Ct. 2005) (“[T]he trial court must set the

conditions for a purge in such a way as the contemnor has the

present ability to comply with the order.”) (emphasis in

original). They did not, and could not, make any predictions

about plaintiffs’ ability to pay in the future.

Thus, while plaintiffs have waived, and are precluded

from raising, any challenge to the state court findings that they

were able to pay at the time the courts imposed their

incarceration and purge orders, they are not precluded from

contending that they were, at the time of their injuries, when

faced with the “community service” scheme at issue here,

unable to pay.

12

3. Changed Circumstances

The District Court, in dismissing plaintiffs’ Thirteenth

Amendment and TVPA claims, correctly pointed out that the

SAC does not allege that plaintiffs’ circumstances changed

between when they were each adjudged able to pay a purge

amount and when they began working at the Recycling Center

under what they purport was coercion. Plaintiffs, however,

respond, also correctly, that they were not required to allege as

much in their complaint, as such facts are required only to

overcome the affirmative defense of issue preclusion, and

“‘[u]nder Federal Rule of Civil Procedure 8, a complaint need

not anticipate or overcome affirmative defenses’ to state a

claim for relief and defeat a Rule 12(b)(6) motion to dismiss.”

Pls.’ Br. at 21 (quoting Schmidt v. Skolas, 770 F.3d 241, 248

(3d Cir. 2014).

Although they do not allege changed circumstances in

their complaint, the facts they do allege support no less than

the inference that when faced with the choice of working at the

Recycling Center, serving their contempt sentence, or paying

their purge amount, plaintiffs were unable to pay. Plaintiffs

allege that they worked at the Center because it was the only

way they could qualify for work release, without which they

could not pay their child support debt and regain their freedom.

For just five dollars per day—approximately sixty-two-and-a-

half cents per hour—they separated trash and recyclables on

conveyor belts, frequently breaking out in skin rashes,

suffering wounds from sharp pieces of glass, and vomiting

from the stench of their abhorrent working conditions, which

includes working in 100 degrees Fahrenheit. App. 132–33 ¶¶

166–75. The Center provides them with unsanitary toilets that

have been out of order and uncleaned for months to relieve

13

themselves and takes away their food as punishment for

working too slowly. Id. “[E]vidence of . . . extremely poor

working conditions is relevant to corroborate disputed

evidence regarding the use . . . of physical or legal coercion . . .

or the causal effect of such conduct.” United States v.

Kozminski, 487 U.S. 931, 952 (1988). “[N]o individual who

could pay his way to freedom would choose to work in the

dangerous conditions of the Recycling Center for just five

dollars per day.” CAC & ACLU Amicus Br. at 6. Rather, the

most plausible inference for why plaintiffs chose to work at the

Recycling Center was to access the work release program that

would pay them enough to enable them to pay their purge and

secure their freedom. Plaintiffs have thus stated plausible facts

from which it can be reasonably inferred that they were, at the

time of their injuries, unable to pay their purge.

The District Court also erred by requiring plaintiffs to

allege why they did not request modification of their support

orders in state court. The statute at issue, 23 Pa. C.S. §

4352(a.2), expressly excludes “incarceration for nonpayment

of support” from “constitut[ing] a material and substantial

change in circumstance that may warrant modification or

termination of an order of support where the obligor lacks

verifiable income or assets sufficient to enforce and collect

amounts due.” As plaintiffs were legally unable to have their

support orders modified or terminated for changed

circumstances stemming from incarceration for nonpayment of

support, they need not plead otherwise.

The District Court thus erred by dismissing plaintiffs’

Thirteenth Amendment and TVPA claims based on their

failure to allege changed circumstances and why they did not

seek modification of their support orders. That does not,

14

however, end the inquiry—plaintiffs still must state claims

upon which relief can be granted.

B. Thirteenth Amendment

Section 1 of the Thirteenth Amendment to the

Constitution of the United States states: “Neither slavery nor

involuntary servitude, except as a punishment for crime

whereof the party shall have been duly convicted, shall exist

within the United States, or any place subject to their

jurisdiction.”

In Kozminski, the Supreme Court held that the phrase

“involuntary servitude,” as used in 18 U.S.C. § 1584 and the

Thirteenth Amendment, is “limited to cases involving the

compulsion of services by the use or threatened use of physical

or legal coercion.” 487 U.S. at 948. The Court rejected the

Government’s broader proposed understanding of the phrase,

which encompassed “the compulsion of services by any means

that, from the victim's point of view, either leaves the victim

with no tolerable alternative but to serve the defendant or

deprives the victim of the power of choice,” because that

reading “would delegate to prosecutors and juries the

inherently legislative task of determining what type of coercive

activities are so morally reprehensible that they should be

punished as crimes.” Id. at 949.

“Modern day examples of involuntary servitude [under

the Thirteenth Amendment] have been limited to labor camps,

isolated religious sects, or forced confinement.” Steirer v.

Bethlehem Area Sch. Dist., 987 F.2d 989, 999 (3d Cir. 1993).

Thus, in Zavala v. Wal Mart Stores Inc., where plaintiff illegal

immigrants “allege[d] that they were coerced into working by

15

threats to report their immigration status to authorities,” we

held that “[a]bsent some special circumstances, threats of

deportation are insufficient to constitute involuntary

servitude.” 6 691 F.3d 527, 531, 541 (3d Cir. 2012). From

Zavala we derive the principle that using an otherwise legal

process for a purpose for which it was not created or intended

to be used is not, on its own, sufficient to constitute the threat

of legal sanction necessary to find a Thirteenth Amendment

violation. Here, restricting access to the work release program

and threatening plaintiffs with serving the entirety of their

otherwise legal contempt sentences is akin to the threats of

deportation in Zavala. Because plaintiffs do not sufficiently

allege involuntary servitude, they fail to state a Thirteenth

Amendment § 1983 claim on which relief can be granted, and

we will affirm the District Court’s dismissal of those claims.

C. TVPA

As to their TVPA claims, Plaintiffs allege three

theories:

204. During all relevant times, Defendants

attempted to and did obtain the labor of Plaintiffs

and the Rule 23 Class through threats of

continued physical restraint, specifically, by

telling Debtors that if they did not work at the

Center they would remain ineligible for work

release, in violation of 15 U.S.C. § 1589(a)(1).

6

Although Zavala involved a claim under 18 U.S.C. § 1584,

the phrase “involuntary servitude” has the same meaning in §

1584 and the Thirteenth Amendment. See Kozminski, 487 U.S.

at 944–45.

16

205. During all relevant times, Defendants

attempted to and did obtain the labor of Plaintiffs

and the Rule 23 Class through abuse of law

and/or legal process, in violation of 15 U.S.C. §

1589(a)(3).

206. During all relevant times, Defendants

attempted to and did obtain the labor of Plaintiffs

and the Rule 23 Class by causing Debtors to

believe that, if they did not provide labor at the

Center, they would suffer continued physical

restraint without the ability to participate in work

release, in violation of 15 U.S.C. § 1589(a)(4).

App. 137.

Congress heeded the Court’s call in Kozminski for

legislative action, see 487 U.S. at 951–52, when it passed the

TVPA, which defines forced labor broader than Kozminski’s

definition of involuntary servitude as used in the Thirteenth

Amendment by criminalizing

knowingly provid[ing] or obtain[ing] the labor or

services of a person by any one of, or by any

combination of, the following means—

(1) by means of force, threats of force, physical

restraint, or threats of physical restraint to that

person or another person;

(2) by means of serious harm or threats of serious harm

to that person or another person;

17

(3) by means of the abuse or threatened abuse of law or

legal process; or

(4) by means of any scheme, plan, or pattern intended to

cause the person to believe that, if that person did

not perform such labor or services, that person or

another person would suffer serious harm or

physical restraint[.]

18 U.S.C § 1589(a). Specifically, subsections (2) and (4) draw

more broadly than Kozminski’s limitation to “physical or legal

coercion.” See also 22 U.S.C. § 7101(b)(13) (noting, in support

of the TVPA’s passage, Kozminski’s narrow definition of

involuntary servitude and stating that “[i]nvoluntary servitude

statutes are intended to reach cases in which persons are held

in a condition of servitude through nonviolent coercion.”);

H.R. Rep. No. 106-939, at 101 (2000) (“Section 1589 will

provide federal prosecutors with the tools to combat severe

forms of worker exploitation that do not rise to the level of

involuntary servitude as defined in Kozminski.”).

Congress also broadly defined “abuse or threatened

abuse of law or legal process” as

the use or threatened use of a law or legal

process, whether administrative, civil, or

criminal, in any manner or for any purpose for

which the law was not designed, in order to exert

pressure on another person to cause that person

to take some action or refrain from taking some

action.

18

18 U.S.C. § 1589(c)(1).

And Congress chose not to include the phrase

“involuntary servitude” in the TVPA. Rather, the TVPA

clearly encompasses a broad range of conduct which is not

limited, as the dissent suggests, to ‘appalling criminal conduct

and shocking depravity.’” See Dissent Op. at n.6. That range

of conduct encompasses circumstances in which the person

whose labor is being exploited is faced with any number of

choices as an alternative to working, including actual or

threatened physical restraint, serious harm, and abuse of law or

legal process. See 18 U.S.C. § 1589(a). And the TVPA bars

getting or giving labor “by any one of, or by any combination

of, the [prohibited] means,” indicating that a victim can face

more than a binary choice and remain protected by the statute.

Id. The TVPA’s more-expansive definitions of coercion reflect

the “increasingly subtle” ways by which labor may be forced,

United States v. Dann, 652 F.3d 1160, 1169 (9th Cir. 2011),

including both physical and “nonphysical forms of coercion,”

Muchira v. Al-Rawaf, 850 F.3d 605, 617 (4th Cir. 2017).

Defendants’ conditioning of plaintiffs’ access to the

work release program (which plaintiffs allege they needed to

free themselves) on a period of nearly free, grueling labor at

the Recycling Center, is an abuse of law or legal process under

the TVPA. That is so because it is a use of the work release

program in a manner for which it was not designed, in order to

pressure plaintiffs to work at the Center. Id. at 1589(c)(1).

Plaintiffs argue that

Pennsylvania law authorizes state correctional

facilities to implement and operate work‐release

19

programs, which enable inmates to temporarily

leave their correctional facility to work in the

community. But these programs must serve

several statutory purposes (and only those

purposes): to promote “accountability of

offenders to their community,” to provide

“opportunities for offenders to enhance their

ability to become contributing members of the

community,” and to “protect society.” 42 Pa.

Stat. and Cons. Stat. § 9803(1)‐(4). Here, the

County operated its work‐release program in a

manner directly at odds with these purposes,

manipulating the qualification standards for

work‐release eligibility solely to gain a

pecuniary benefit.

Pls.’ Br. at 31. No defendant challenges this argument. And the

placement of Section 9813, “Work release or other court order

and purposes,” in Title 42, Chapter 98, “County Intermediate

Punishment”—which also includes Section 9803, “Purpose,”

the Section relied on by plaintiffs—indicates that Section

9803’s stated purposes govern county jail work release

programs like that which plaintiffs sought to participate in

here.

Section 9803 states in full:

County intermediate punishment programs shall

be developed, implemented and operated for the

following purposes:

20

(1) To protect society and promote efficiency

and economy in the delivery of corrections

services.

(2) To promote accountability of offenders to

their local community.

(3) To fill gaps in local correctional systems and

address local needs through expansion of

punishment and services available to the

court.

(4) To provide opportunities for offenders who

demonstrate special needs to receive services

which enhance their ability to become

contributing members of the community.

42 Pa. Stat. and Cons. Stat. § 9803.

Again, no defendant contends that conditioning access

to work release on a period of dangerous, nearly unpaid labor

serves any of those purposes. Rather, the nearly free labor for

most of the grunt work at a joint public/private profit-seeking

operation seems to be the point. The Professional Service

Operating Agreement between the Corporation and the

Municipal Authority states that the “Authority shall use its best

efforts to . . . provide [the Corporation] with the same number

of Prisoners from the Lackawanna County Prison that have

historically worked at the Center as part of their work release

program as security requirements dictate.” App. 150. Plaintiffs

allege that “the only individuals typically performing this work

are those from the Prison. The Center does not employ hourly-

paid workers to regularly perform this work.” App. 133 ¶ 176.

And under the Operating Agreement, “the Authority shall

21

retain the lesser of[] all revenues or the first $60,000.00 of

gross revenue.” App. 148. So long as the Center brings in more

than $60,000, the Corporation and the Authority share the

profits earned by exploiting plaintiffs’ and their purported class

members’ nearly free labor—labor which plaintiffs purport to

have provided so as to be eligible to later access the work

release program, earn real wages, pay their purges, and free

themselves from civil incarceration.

That is a clear example of “the use . . . of a law or legal

process . . . in a[] manner or for any purpose for which the law

was not designed, in order to exert pressure on another person

to cause that person to take some action,” which the TVPA

defines as an abuse of law or legal process. 18 U.S.C.

§ 1589(c)(1); see id. § 1589(a)(3) (proscribing the obtaining or

providing of labor or services by means of the abuse of law or

legal process); see also United States v. Calimlim, 538 F.3d

706, 713 (7th Cir. 2008) (“[T]he immigration laws do not aim

to help employers retain secret employees by threats of

deportation, and so their ‘warnings’ about the consequences

were directed to an end different from those envisioned by the

law and were thus an abuse of the legal process. See

Restatement (Second) of Torts § 682. The warnings therefore

fit within the scope of § 1589(3).”). Of course, plaintiffs do not

have an independent due process or state-created liberty

interest in access to a work release program in which they have

not yet been placed. See Powell v. Weiss, 757 F.3d 338, 342–

46 (3d Cir. 2014). But they have a statutory right to be free

from having their labor knowingly coerced via, inter alia, the

abuse of law or legal process.

The TVPA also proscribes providing or obtaining labor

“by any one of, or by any combination of,” the proscribed

22

means. 18 U.S.C. § 1589(a). That includes (1) serious harm,

such as “withholding basic necessities like food” if they did not

work efficiently enough at the Recycling Center, see

Barrientos v. CoreCivic, Inc., 951 F.3d 1269, 1273 (11th Cir.

2020); (2) physical restraint, like plaintiffs allege they faced

(albeit pursuant to a legal order) if they were unable to access

the work release program to pay their purge; and (3) abuse of

law or legal process, like conditioning access to a work release

program on the furnishing of a period of nearly free labor.

Plaintiffs have thus sufficiently pleaded that their labor was

provided and obtained by a combination of means prohibited

by the TVPA, 18 U.S.C. § 1589.

Several defendants also contest whether they,

specifically, can be held liable. The Authority first argues that

Child Support Debtors offend the intent and

purpose of the TVPA by essentially analogizing

their situations to the serious cases of physical

and sexual exploitation of trafficked woman and

children intended to be protected by the act.

Child Support Debtors were lawfully sentenced

to a term of imprisonment where eligibility for

traditional work release was lawfully

conditioned upon community service. Court

ordered Community service is not human

trafficking, and the TVPA was never intended to

criminalize or impose liability upon

governmental, municipal, and private entities

and individuals who either offer inmates the

opportunity to complete community service or

provide a means to actually complete community

service.

23

Auth Br. at 21–22.

But despite its legislative history, the TVPA is not

limited to “serious cases of physical and sexual exploitation of

trafficked woman and children.” Id. Rather, it applies to

“[w]hoever” falls within the reach of its plain text. 18 U.S.C.

§ 1589; see Gonzalez v. CoreCivic, Inc., 986 F.3d 536, 539 (5th

Cir. 2021) (cleaned up) (holding that § 1589(a) applies to a

federally regulated work program in a privately operated

federal immigration detention facility because “legislative

history cannot muddy the meaning of clear statutory

language”); Barrientos, 951 F.3d at 1276–77 (same). Just

because the County and its Municipal Authority purport to

operate community service and work release programs in

compliance with Pennsylvania law does not mean that they are

precluded from liability for those programs’ TVPA violations.

The Authority and the Corporation’s contentions that

their alleged conduct was not proscribed by the TVPA

similarly fail. The TVPA subjects to liability not only

“[w]hoever knowingly provides or obtains the labor or services

of a person by any one of, or by any combination of, the”

proscribed means, but also “[w]hoever knowingly benefits,

financially or by receiving anything of value, from

participation in a venture which has engaged in the providing

or obtaining of labor or services by any of the [proscribed]

means . . . , knowing or in reckless disregard of the fact that the

venture has engaged in the providing or obtaining of labor or

services by any of such means.” 18 U.S.C. § 1589(a), (b).

Plaintiffs argue that at minimum, they have plausibly alleged a

beneficiary/venture claim as to the Authority, the Corporation,

and the DeNaples brothers.

24

The alleged venture starts with the County’s policy

requiring child support debtor contemnors to work half of their

sentences at the Corporation if they want to qualify for work

release—which plaintiffs contend they depend on to earn

money to free themselves from physical restraint in the form

of civil contempt incarceration. That is an abuse of law or legal

process as defined by the TVPA.

The County provides the debtors’ labor to the

Corporation via the Operating Agreement between the

County’s Municipal Authority and the Corporation, which

states that the “Authority shall use its best efforts to . . . provide

[the Center] with the same number of Prisoners from the

Lackawanna County Prison that have historically worked at the

Center as part of their work release program as security

requirements dictate.” App. 150. Plaintiffs sufficiently allege

that the Authority and the Corporation, as parties to the

contract, knowingly benefited from its provisions, including

the providing of debtors’ labor to the Corporation. See App.

134 ¶¶ 183–84 (allegations about reduced operating costs

benefitting venture defendants).

Plaintiffs also state sufficient facts supporting the

reasonable inference that the Authority and the Corporation

knew or should have known that the venture used prohibited

means to obtain or provide labor. Plaintiffs allege extremely

poor working conditions and direct on-site supervision by

County and Corporation employees. See Kozminski, 487 U.S.

at 952 (stating that “extremely poor working conditions are

relevant to . . . the use or threatened use of physical or legal

coercion, the defendant’s intention in using such means, or the

25

casual effect of such conduct.”). 7 It is quite plausible to infer

from those facts that it was apparent to those employees

overseeing plaintiffs’ work that “no individual who could pay

his way to freedom would choose to work in the dangerous

conditions of the Recycling Center for just five dollars per

day.” CAC & ACLU Amicus Br. at 6. Thus, plaintiffs have

stated facts supporting the plausible inference that the

Corporation should have known that those prisoners working

at the Center, including plaintiffs, were made to do so by

prohibited means.

And though the County Municipal Authority did not

directly oversee plaintiffs’ labor at the Center, the facts alleged

suggest the inference that it knew about the venture’s use of

prohibited labor. The Authority is the party that contracted to

provide prison labor to the Corporation. As the provider of the

prisoners, it is reasonable to infer that the Authority knew that

“a significant number of the prisoners supplied by the

Authority to LRCI for work at the Center have been placed in

the Prison following civil contempt proceedings for failure to

pay child support.” App. 130 ¶ 145. And additionally it can be

7

The dissent’s description of Plaintiffs’ working conditions as

“colorful descriptions of ‘sorting through trash’” and “dirty,

difficult, and demanding” work fails to accurately reflect what

Plaintiffs’ allege has occurred. One can celebrate and

recognize the importance of blue-collar jobs and also point out

working conditions that most workers would find repugnant

and would serve as the basis for a TVPA claim—i.e., getting

paid less than six dollars per day, having your meals taken

away if you do not work hard enough, lacking protective

equipment or failing to have basic sanitary items like a

functioning toilet.

26

inferred—from several of the Authority’s obligations in the

Operating Agreement, including to “(1) cooperate with

Operator in effectuating the transition by providing a transition

team to meet with Operator to plan the transition; (2) provide

any and all necessary books and records, customer lists, vendor

lists, sale invoices, purchase invoices, payroll records, etc.[;

and] (3) provide Operator with the same number of Prisoners

from the Lackawanna County Prison that have historically

worked at the Center as part of their work release program”—

that before the Corporation agreed to operate the Center, the

Authority itself operated the Center primarily with prison

labor. App. 150. There is no reason to think that the disgusting

and dangerous nature of the work at the Center was any

different before the Corporation took control. Plaintiffs have

alleged sufficient factual matter to support the reasonable

inference that the Authority knew that plaintiffs’ (and other

contemnors’) work at the Center was obtained and provided by

means prohibited by the TVPA—that is, threat of physical

restraint and abuse of law or legal process. Thus, plaintiffs have

stated a TVPA claim as to the County, the Authority, and the

Corporation.

The claims as to the DeNaples brothers are more

tenuous. Plaintiffs state plausible facts alleging that the

DeNaples brothers benefitted from and participated in the

venture and generally allege that “Defendants were aware of

Debtors’ work at the Center,” App. 134 ¶ 181, but they do not

state any facts supporting that general conclusion, nor from

which the conclusion could be reasonably inferred. See

Ashcroft v. Iqbal, 556 U.S. 662, 686–87 (2009) (“Rule 8 does

not empower respondent to plead the bare elements of his cause

27

of action, affix the label ‘general allegation,’ and expect his

complaint to survive a motion to dismiss.”). 8

Accordingly, plaintiffs’ TVPA claims against the

County, the Authority, and the Corporation should not have

been dismissed, but dismissal of their TVPA claims against the

DeNaples brothers was appropriate.

D. RICO

The RICO Act, 18 U.S.C. § 1962(c), states that

It shall be unlawful for any person employed by

or associated with any enterprise engaged in, or

the activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or

indirectly, in the conduct of such enterprise’s

affairs through a pattern of racketeering activity

or collection of unlawful debt.

Section 1961(1) defines “racketeering activity” to include “any

act which is indictable under any of the following provisions

of title 18, United States Code: . . . sections 1581-1592

(relating to peonage, slavery, and trafficking in persons).” And

8

As stated in footnote five, Congress amended the TVPA on

January 5, 2023. See Pub. L. No. 117-347, 136 Stat 6199, 6200.

The 2023 TVPA amendment adds civil liability for anyone

who “attempts or conspires to benefit” from a TVPA violation.

Even if this applies retroactively, it neither alters the

requirement that the defendant “knew or should have known”

that the venture violated the TVPA nor our conclusion that

pleadings as to the DeNaples brothers fail for this reason.

28

§ 1964(c) provides a civil remedy for “[a]ny person injured in

his business or property by reason of a violation of section

1962.”

The SAC alleges that all defendants violated RICO by

way of their alleged TVPA violations. The District Court

dismissed the RICO claims against the Corporation because it

found plaintiffs failed to plausibly allege a predicate TVPA

violation. And the Court dismissed the RICO claims against

the DeNaples brothers because the facts alleged in the SAC

“are not sufficient to establish that Louis and Dominick

DeNaples personally—separate and apart from their roles as

corporate officers—‘conducted or participated in the conduct

of the enterprise’s affairs, not just their own affairs.’” App. 66–

67 (quoting Cedric Kushner Promotions, Ltd. v. King, 533 U.S.

158, 162 (2001)).

We agree that plaintiffs’ RICO claims against the

DeNaples brothers fail, but for a different reason—because

plaintiffs’ predicate TVPA claims against them fail. However,

plaintiffs’ RICO claims against the Corporation survive. The

Corporation contends that plaintiffs have failed to allege that

the Corporation engaged in the alleged TVPA violations. But,

for the same reason that plaintiffs have sufficiently alleged

predicate TVPA venture liability as to the Corporation, they

have sufficiently alleged predicate RICO liability as to the

Corporation. The allusion to an argument that TVPA venture

liability is not a predicate RICO offense has no basis in law.

And the Corporation contracting for, and allegedly overseeing,

plaintiffs’ labor, in order to operate the Recycling Center for

its and the County/Authority’s profit, indicates that the

Corporation “participated in the ‘operation or management’”

of the RICO enterprise—here, the same as the TVPA venture

29

described above—“ through a pattern of racketeering activity.”

See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 372 (3d

Cir. 2010).

E. FLSA & Pennsylvania Minimum Wage

Act

Plaintiffs contend that the Recycling Center, the

County, and the Authority violated the FLSA’s minimum wage

protections, 29 U.S.C. § 206(a)(1)(C), and the Pennsylvania

Minimum Wage Act, 43 Pa. Stat. and Cons. Stat. §

333.104(a.1), 9 by paying plaintiffs sixty-three cents an hour to

work at the Recycling Center.

The District Court disagreed, relying on the D.C. Circuit

Court of Appeals’ rule

that a prerequisite to finding that an inmate has

“employee” status under the FLSA is that the

prisoner has freely contracted with a non-prison

employer to sell his labor. Under this analysis,

where an inmate participates in a non-obligatory

work release program in which he is paid by an

outside employer, he may be able to state a claim

under the FLSA for compensation at the

minimum wage. However, where the inmate's

labor is compelled and/or where any

compensation he receives is set and paid by his

custodian, the prisoner is barred from asserting a

9

This analysis also applies to plaintiffs’ Pennsylvania

Minimum Wage Act claims. See Commonwealth v. Stuber, 822

A.2d 870, 873 (Pa. Commw. Ct. 2003).

30

claim under the FLSA, since he is definitively

not an “employee.” At the pleading stage, this

means that a federal prisoner seeking to state a

claim under the FLSA must allege that his work

was performed without legal compulsion and

that his compensation was set and paid by a

source other than the Bureau of Prisons itself.

Absent such allegations, prison labor is

presumptively not “employment” and thus does

not fall within the ambit of the FLSA.

Henthorn v. Dep't of Navy, 29 F.3d 682, 686–87 (D.C. Cir.

1994). The Court held that plaintiffs’ FLSA claims failed this

test (1) because plaintiffs alleged that their labor was

compelled, and thus it could not be voluntary—despite the

Court previously discrediting plaintiffs’ allegations of

compulsion in order to dismiss their TVPA and Thirteenth

Amendment claims 10—and (2) because plaintiffs alleged that

10

In order to conclude that plaintiffs had not sufficiently

alleged that their work was voluntary, the District Court

handwaved its earlier discrediting of plaintiffs’ claims of

compulsion and concluded that they had voluntarily chosen to

work. But if the Court found implausible plaintiffs’ allegations

that their work was involuntary, then it had decided their work

was voluntary, and could not dismiss their FLSA claims for

failure to sufficiently allege voluntariness.

As the Recycling Center acknowledges, parties “can

plead facts in the alternative, and under Fed. R. Civ. P. 8, a

party may state as many separate claims or defenses as it has,

regardless of consistency.” Corp. Br. at 28 n.13. And it is true

that plaintiffs cannot assert contradictory factual allegations

31

the Authority and the County, the latter of which was their

jailer, set their pay. We will reverse, because plaintiffs have

alleged sufficient plausible facts to state a claim that they are

employees and that the County, its Municipal Authority, and

the Corporation are their joint employers.

1. Joint Employment

The FLSA’s minimum wage provisions apply to those

that fall under the statutory definition of “employees” and

“employers.” 29 U.S.C. § 206. The FLSA defines “employee”

as “any individual employed by an employer,” “employ” as “to

suffer or permit to work,” and “employer” as any “person,”

which encompasses an “individual, partnership, association,

corporation, business trust, legal representative, or any

organized group of persons” acting “directly or indirectly in

the interest of an employer in relation to an employee and

includes a public agency.” 29 U.S.C. § 203(a), (d), (e)(1), (g).

that are not legitimately in doubt. See id. But whether

plaintiffs’ work was involuntary is not a fact; it is a mixed

question of law and fact which is so in doubt that the District

Court already denied it. The Court cannot then turn around and

say plaintiffs did not allege the very thing the Court concluded

had to be true—that plaintiffs’ work was voluntary.

Of course, plaintiffs cannot prevail on the merits on both

their TVPA claims, which require some degree of involuntary

work, and their FLSA claims, which require that they worked

voluntarily. But that does not bar plaintiffs from presenting

both theories to a factfinder who can conclude whether the

facts prove that plaintiffs’ work was voluntary or involuntary.

32

The FLSA defines employer and employee broadly

“and with ‘striking breadth.’” In re Enter. Rent-A-Car Wage &

Hour Emp. Pracs. Litig., 683 F.3d 462, 467 (3d Cir. 2012)

(quoting Rutherford Food Corp. v. McComb, 331 U.S. 722,

730 (1947); Donovan v. DialAmerica Mktg., Inc., 757 F.2d

1376, 1382 (3d Cir. 1985) (“Congress and the courts have both

recognized that, of all the acts of social legislation, the Fair

Labor Standards Act has the broadest definition of

‘employee.’”). That is because the FLSA “is part of the large

body of humanitarian and remedial legislation enacted during

the Great Depression, and has been liberally interpreted.”

Brock v. Richardson, 812 F.2d 121, 123 (3d Cir. 1987). “The

Supreme Court has even gone so far as to acknowledge that the

FLSA's definition of an employer is ‘the broadest definition

that has ever been included in any one act.’” In re Enter. Litig.,

683 F.3d at 467–68 (quoting United States v. Rosenwasser, 323

U.S. 360, 363 n.3 (1945)). Moreover, circuit courts have

consistently held that prisoners as a class are not exempted

from FLSA coverage. Henthorn, 29 F.3d at 685 (citing

Vanskike v. Peters, 974 F.2d 806, 808 (7th Cir. 1992)).

Congress has laid out “an extensive list of workers who are

exempted from FLSA coverage” that does not include

prisoners, so it would be an “encroachment upon legislative

prerogative for a court to hold that a class of unlisted workers

is excluded from the Act.” Carter v. Dutchess Cmty. Coll., 735

F.2d 8, 13 (2d Cir. 1984). FLSA coverage is a highly factual

inquiry that requires consideration of “the circumstances of the

whole activity . . . rather than any one particular factor.”

DialAmerica Mktg., 757 F.2d at 1382 (citing Rutherford Food

Corp., 331 U.S. at 730). Accordingly, the FLSA

employer/employee determinations must be made in light of

the “economic reality” of the parties’ relationship. Goldberg v.

Whitaker House Co-op., Inc., 366 U.S. 28, 33 (1961).

33

In In re Enterprise Litigation, this Court set out the test

for whether a defendant is a joint employer. “[D]oes the alleged

employer have: (1) authority to hire and fire employees; (2)

authority to promulgate work rules and assignments, and set

conditions of employment, including compensation, benefits,

and hours; (3) day-to-day supervision, including employee

discipline; and (4) control of employee records, including

payroll, insurance, taxes, and the like.” 683 F.3d at 469. The

Court “emphasize[d], however, that these factors do not

constitute an exhaustive list of all potentially relevant facts,

and should not be blindly applied.” Id. (emphasis in original)

(cleaned up). We continued that “courts should not be confined

to narrow legalistic definitions and must instead consider all

the relevant evidence, including evidence that does not fall

neatly within one of the above factors.” Id. (cleaned up). And

we noted that

this is consistent with the FLSA regulations

regarding joint employment, which state that a

joint employment relationship will generally be

considered to exist where the employers are not

completely disassociated with respect to the

employment of a particular employee and may

be deemed to share control of the employee,

directly or indirectly, by reason of the fact that

one employer controls, is controlled by, or is

under common control with another employer.

Id. at 468 (cleaned up).

In Tourscher v. McCullough, we held that both pre-trial

and convicted inmates are “not entitled to minimum wages

34

under the FLSA” for “intra-prison work.” 184 F.3d 236, 243–

44 (3d Cir. 1999). To reach that conclusion as to convicted

inmates, we agreed with the ten other circuits that had

addressed the question and quoted analysis from the Second

Circuit Court of Appeals: “The relationship is not one of

employment; prisoners are taken out of the national economy;

prison work is often designed to train and rehabilitate;

prisoners' living standards are determined by what the prison

provides; and most such labor does not compete with private

employers.” Danneskjold v. Hausrath, 82 F.3d 37, 42 (2d Cir.

1996). And we extended that rationale to pre-trial detainees by

relying on analysis from the Eleventh Circuit Court of Appeals

that

The purpose of the FLSA is to protect the

standard of living and general well-being of the

American worker. Because the correctional

facility meets [plaintiff’s] needs, his standard of

living is protected. In sum . . . [plaintiff]’s

situation does not bear any indicia of traditional

free-market employment contemplated under the

FLSA.

Villarreal v. Woodham, 113 F.3d 202, 207 (11th Cir. 1997)

(cleaned up).

Plaintiffs’ work, however, was not the sort of “intra-

prison work” for which inmates are categorically “not entitled

to minimum wages under the FLSA.” Tourscher, 184 F.3d at

243–44. The Recycling Center is located at an off-site facility

to which plaintiffs and their purported class members were

transported by County jail guards. The facility is owned by the

County Municipal Authority and operated, for the most part,

35

by the Corporation, pursuant to an Operating Agreement

between the Authority and the Corporation. Plaintiffs’ off-site

work, not done for the benefit of the jail but rather for the

benefit of the public-private partnership between the Municipal

Authority and the Recycling Center, is markedly different than

inmates doing work within a facility “producing goods and

services used by the prison” (like plaintiff in Tourscher’s work

in the prison cafeteria).

The Tourscher, Danneskjold, and Villarreal opinions

are limited to intra-prison labor, and each acknowledge and

distinguish the Fifth Circuit Court of Appeals’ opinion in

Watson v. Graves, which held that the FLSA applied to

convicted inmates allowed to work for a private construction

company outside of the jail. 909 F.2d 1549, 1553–56 (5th Cir.

1990). Watson applied the traditional four-factor economic

reality test originated by the Ninth Circuit Court of Appeals in

Bonnette v. California Health and Welfare Agency, which is

slightly less detailed than our Enterprise test: “whether the

alleged employer (1) had the power to hire and fire the

employees, (2) supervised and controlled employee work

schedules or conditions of employment, (3) determined the rate

and method of payment, and (4) maintained employment

records.” 704 F.2d 1465, 1470.

By contrast, the D.C. Circuit Court of Appeals in

Henthorn declined to apply the Bonnette test to incarcerated

people at all and rejected the relevance of whether they work

inside or outside of the prison or for public or private

employers, instead asking whether (1) an inmate’s labor is

compelled or voluntary and (2) their wages are set and paid by

their custodian or an outside employer. 29 F.3d at 685–87. The

plaintiff in Henthorn was a convicted federal prisoner,

36

incarcerated at a federal prison on a naval base, and assigned

to work on the grounds of the base outside of the prison. Id. at

683. The D.C. Circuit did not apply the traditional Bonnette

economic reality test because “the prisoner is legally

compelled to part with his labor as part of a penological work

assignment” and “is truly an involuntary servant to whom no

compensation is actually owed.” Id. at 686 (citing Vanskike,

974 F.2d at 809 (“Thirteenth Amendment's specific exclusion

of prisoner labor supports the idea that a prisoner performing

required work for the prison is actually engaged in involuntary

servitude, not employment.”) and Wilks v. District of

Columbia, 721 F. Supp. 1383, 1384 (D.D.C. 1989) (convicted

“inmate labor belongs to the penal institution and inmates do

not lose their primary status as inmates just because they

perform work”)).

As a preliminary matter, none of those cases involve

non-convicted inmates like plaintiffs here. And the Henthorn

test’s muddled application to this case proves it too narrow and

rigid to serve the FLSA’s purposes.

As to the first factor, plaintiffs allege that their work was

coerced, but as defendants argue, plaintiffs chose to work at the

Recycling Center rather than merely complete their contempt

sentences. Plaintiffs’ work, as alleged, sits on a razor-thin line

between involuntary and voluntary, and whether it falls to

either side should be decided on the facts. And no one can say

that not convicted plaintiffs’ work belongs to the County or

that the Thirteenth Amendment excludes their labor from the

prohibition on involuntary servitude.

The second factor—does the custodian or a private

party set and provide pay?—is similarly unclear. Plaintiffs

37

allege that the County and its Municipal Authority set inmate

pay. While the County alone setting plaintiffs’ pay may seem

to weigh in favor of finding that they were not employees

(because the County was plaintiffs’ custodian), that is

complicated in a case like this, where the County and its

Municipal Authority financially benefitted from plaintiffs’

labor. Further, plaintiffs are silent as to who actually paid them,

and the County Municipal Authority seems to contend in its

briefing that the Recycling Center paid them. See Auth. Br. at

17 (“The Authority did not set or pay any employee wages to

either inmates completing community service at the recycling

center or standard employees directly hired to work at the

recycling center. All wages and compensation were managed

and paid by the Center, out of its own contractual

consideration.”). And even if the County set and provided

plaintiffs’ pay, it did so in furtherance of its business

relationship with the Recycling Center Corporation, with

whom it operated the Center as a joint public-private venture

(through the auspices of the Municipal Authority), to whom it

contracted out plaintiffs’ work as off-site sub-minimum wage

labor, and who plaintiffs allege jointly controlled plaintiffs’

work along with County jail guards. There is a real difference

in the economic relationships at play when a custodial

jurisdiction receives an economic benefit for its not convicted

wards’ work.

Application of the Enterprise test proves far more

useful. Plaintiffs allege the following facts relevant to the

Enterprise factors:

133. Pursuant to the Operating Agreement,

County personnel select Debtors to work at the

Center.

38

134. Upon information and belief, County

personnel and LRCI personnel have authority to

terminate Debtors from their assignments at the

Center.

135. Defendants LRCI and the Authority jointly

determine work rules and assignments.

136. Defendants LRCI, the County, and the

Authority jointly determine the days and hours

during which Debtors will work at the Center.

137. County personnel – specifically, prison

guards – transport Debtors to the Center

consistent with agreed-upon work schedules.

138. The prison guards remain on site at the

Center to supervise Debtors and ensure security.

139. The prison guards and Center employees

jointly supervise Debtors’ work at the Center,

including but not limited to ensuring that

prisoners working on the line worked quickly.

140. If prisoners on the line did not move quickly

enough or failed to remove all the glass from the

conveyor belt, the prison guards or Center staff

punished them by, for example, omitting

portions of their prison-provided lunch.

141. Staff at the Center direct Debtors’ work,

including but not limited to assigning them to

workstations, instructing them how to perform

their tasks, and authorizing them to take breaks.

39

142. The Authority and the County set Debtors’

pay at $5 per day.

143. Under the terms of the Operating

Agreement, LRCI has the authority to set the

rates of compensation of any employees of the

Center.

App. 129–30 ¶¶ 133–43. These all indicate plaintiffs’ joint

employment by the County, its Municipal Authority, and the

Corporation.

Also relevant to the economic reality of plaintiffs’

relationships with the County, the Municipal Authority, and

the Corporation, is the fact that the County and Authority

contracted out plaintiffs’ work to the Corporation for a joint

economic benefit. Plaintiffs and their cohort did the facility’s

integral and necessary grunt work of hand-sorting garbage in

lieu of the Corporation employing hourly-paid workers. That

work “benefited Defendants by reducing the need for paid

employees and artificially reducing their labor costs through

access to a steady supply of sub-market rate labor for which

Defendants did not provide unemployment and health

insurance, worker’s compensation, minimum wages, and/or

overtime premiums.” App. 138 ¶ 217. That is true as to the

County, which had custody of plaintiffs and provided their

labor, and its Municipal Authority, which owned the facility

out of which the Recycling Center ran and shared the profits

that resulted from its operation. It is also true for the

Corporation, which contracted with the County’s Municipal

Authority to run the Recycling Center. Pursuant to the

Operating Agreement between the Recycling Center and the

Authority, the “Authority shall use its best efforts to . . . provide

40

[the Center] with the same number of Prisoners from the

Lackawanna County Prison that have historically worked at the

Center as part of their work release program as security

requirements dictate.” App. 150. As such, the Recycling

Center relied on plaintiffs and other inmates to do work that

other recycling facilities had to hire people to do.

The economic reality of plaintiffs’ relationship with the

County, its Municipal Waste Management Authority, and the

Corporation is only truly understood by looking at all of those

facts, which resemble an employee-joint employer relationship

far more than the typical forced prison work program.

The purposes underlying the FLSA bolster our

conclusion. “The central aim of the Act was to

achieve, in those industries within its scope,

certain minimum labor standards.” Mitchell v.

Robert DeMario Jewelry, Inc., 361 U.S. 288,

292, 80 S.Ct. 332, 335, 4 L.Ed.2d 323 (1960).

Congress sought to correct labor conditions that

are “detrimental to the minimum standard of

living necessary for health, efficiency, and

general well-being of workers.” 29 U.S.C. §

202(a). In addition, the FLSA was intended to

prevent unfair competition in commerce from

the use of underpaid labor. 29 U.S.C. §

202(a)(3).

Vanskike, 974 F.2d at 810.

While plaintiffs’ basic needs were provided for by

Lackawanna County, plaintiffs allege that they were only

incarcerated because they were unable to pay their purges.

41

They needed money for a reason that the typical incarcerated

person does not: to satisfy their contempt orders and secure

their freedom from incarceration. Thus, while courts may

conclude that typical prisoners do not need a minimum wage

because they are fed and housed by the state, plaintiffs here had

a concrete, important financial objective that they contend was

the reason they worked at the Center. And as to competition in

commerce, the Corporation here surely competed with other

local and regional recycling facilities who had to hire

employees; the Corporation, on the other hand, got an unfair

advantage in the form of nearly free labor funneled from its

business partner, the County—who stood to profit from the

Corporation’s success. Plaintiffs’ work at the Center mirrors

the work in Watson, where the defendant had access to a “pool

of workers” whom he paid “token wages” far below the

minimum wage, and “incurred no expenses for overtime,

unemployment insurance, social security,” etc. and did not

need to worry about competition. Watson, 909 F.2d at 1555.

The situations in Watson and here are “the very problems that

FLSA was drafted to prevent—grossly unfair competition

among employers and employees alike.” Id.

We are not persuaded that the passage of the Ashurst-

Sumners Act of 1935, see 18 U.S.C. §§ 1761–62, is reason to

preclude from FLSA protection prisoners who partake in labor

outside prison walls and who perform labor that does not

benefit the prison. While the Ashurst-Sumners Act “regulates

the interstate transportation of prison-made goods to avoid

competition between low-cost prison labor and free labor,”

Danneskjold, 82 F.3d at 42, “prison labor might implicate

unfair-competition concerns when prisoners are paid below

minimum wage to work for ‘a company that was not providing

services to the prison and that competed with companies

42

required to pay wages set by the FLSA.’” Gamble v. Minnesota

State-Operated Servs., 32 F.4th 666, 671 (8th Cir. 2022)

(quoting Danneskjold, 82 F.3d at 44). That is arguably the

situation at hand. As stated above, the Corporation competed

with other recycling facilities that had to hire employees and

did not get the benefit of nearly free labor. Plaintiffs’ work was

done off-site and for the benefit of a public-private partnership,

unlike in Harker where the prisoners worked at a workshop

located in the prison and produced goods that reached the open

market in limited ways. See Harker v. State Indus., 990 F.2d

131, 136 (4th Cir. 1993). Plaintiffs’ work was also not that of

an inmate performing work assignments, such as janitor or

kitchen worker, directly for the benefit of the prison. See

Vanskike, 974 F.2d at 812. Here, the benefits of Plaintiffs’

labor do not redound to the prison. The existence of the

Ashurst-Sumners Act does not cause us to ignore the stark

differences between work done for the prison’s benefit and

outside work done at least partially to benefit a private

corporation.

Plaintiffs thus sufficiently allege that, while working at

the Center, they were the employees of the County, the

Authority, and the Corporation, acting as joint employers.

2. Statute of Limitations

The Corporation also argues that Burrell and Huzzard’s

claims are barred by the FLSA’s statute of limitations, as their

violations occurred in 2014 and 2013, respectively, and they

did not raise their FLSA claims when plaintiffs filed their

Second Amended Complaint in 2019.

43

Plaintiffs contend that the statute of limitations should

be equitably tolled because defendants failed to conspicuously

post required notices to alert them to their rights as employees

and “actively misled Plaintiffs and members of the FLSA

Collective regarding the nature of their relationship with

Defendants by suggesting to them that they were not

employees with rights but rather prisoners whom Defendants

could force to perform work as punishment and as a condition

of their liberty,” and “[t]hese actions prevented Plaintiffs and

those similarly situated from understanding that they had a

right to federal minimum wage during the time they worked at

the Center.” App. 127 ¶¶ 118–119.

While we have not decided whether an employer’s

failure to post required FLSA notices, by itself, tolls the statute

of limitations, at least one other Court of Appeals has. See Cruz

v. Maypa, 773 F.3d 138, 146–47 (4th Cir. 2014). In Cruz, the

Fourth Circuit Court of Appeals extended its prior precedent—

holding “that the 180–day filing requirement of the Age

Discrimination in Employment Act (“ADEA”) was tolled by

reason of the plaintiff's employer's failure to post statutory

notice of workers' rights under the Act”—to the FLSA context,

because “the notice requirements in the ADEA and the FLSA,”

and their purposes, “are almost identical,” and, unlike the

ADEA, the FLSA lacks an administrative filing requirement.

Id. (citing Vance v. Whirlpool Corp., 716 F.2d 1010 (4th Cir.

1983)). We have held the same in the ADEA context, and a

panel of our Court applied that holding in the Title VII context.

See Bonham v. Dresser Indus., Inc., 569 F.2d 187, 193 (3d Cir.

1977); Hammer v. Cardio Med. Prods., Inc., 131 F. App’x 829,

831–32 (3d Cir. 2005). And we need not categorically

conclude that failure to post notices is itself sufficient to

equitably toll the limitations period. Plaintiffs here allege

44

more: that defendants actively misled them by failing to post

notices and telling them that they were not employees with

rights but rather prisoners who could be forced to work for

below the minimum wage. App. 126–27 ¶¶ 117–118. These

allegations amount to “active misleading” such that equitable

tolling applies. See Hedges v. United States, 404 F.3d 744, 751

(3d Cir. 2005). 11

Accordingly, plaintiffs’ FLSA claims against the

County, the Authority, and the Corporation are not barred by

the statute of limitations.

F. Pennsylvania Wage Payment and

Collection Law

The Pennsylvania Wage Payment and Collection Law

requires employers to pay employees their promised wages “in

lawful money of the United States or check.” 43 Pa. Stat.

§ 260.3(a). That requirement is not waivable. Id. § 260.7. The

law “does not create a right to compensation. Rather, it

provides a statutory remedy when the employer breaches a

contractual obligation to pay earned wages. The contract

11

Additionally, Burrell’s FLSA claim relates back to the filing

of his First Amended Complaint. His FLSA claim in the

Second Amended Complaint “arose out of the conduct,

transaction, or occurrence set out—or attempted to be set out—

in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). Burrell’s

pro se First Amended Complaint alleges that he was paid far

below the minimum wage to work full days at the Center, and

that he was told he could be treated as such because he was a

prisoner. With regard to his FLSA claim in the SAC, that

satisfies Fed. R. Civ. P. 15(c)(1)(B).

45

between the parties governs in determining whether specific

wages are earned.” Weldon v. Kraft, Inc., 896 F.2d 793, 801

(3d Cir. 1990).

The District Court first held that the law did not apply

to plaintiffs based on its earlier conclusion that there was not

an employer-employee relationship in the FLSA context. But

it also held that even if there was, plaintiff failed to allege an

implied contract or a breach thereof. The Court noted that

while Burrell alleged he was told by prison staff that he would

receive $5.00 a day for working at the Center, Huzzard and

Stuckey did not allege that they were told as much, “only that

they in fact received $5.00 a day and those payments were

deposited in their commissary accounts.” App. 82. It then

extrapolated from those facts the conclusion that “[t]he Second

Amended Complaint contains no allegation that a person

acting with the authority to speak for any Defendant

established that Plaintiffs would be paid $5.00 for their

services. Thus, the Court cannot infer from the Second

Amended Complaint that the parties ‘agreed on the obligation

to be incurred.’” App. 83 (quoting Oxner v. Clivedon Nursing

& Rehab. Ctr. PA, L.P., 132 F. Supp. 3d 645, 649 (E.D. Pa.

2015)) (cleaned up).

But the District Court’s conclusion ignores its own

acknowledgment that Burrell alleged that County prison

staff—who presumably have the authority to speak for the

County—told him that he would be paid $5.00 a day for his

work at the Center. That directly contradicts the inference that

plaintiffs fail to allege that anyone “acting with the authority to

speak for any Defendant established that Plaintiffs would be

paid $5.00 for their services.” App. 83. That is exactly what

Burrell has alleged.

46

And it is no far stretch to identify an implied agreement.

Plaintiffs allege that “[t]he Authority and the County set

Debtors’ pay at $5 per day.” App. 130 ¶ 142. Further, as the

Authority points out in its brief, 37 Pa. Code § 95.235(3) states

that “[w]ritten local policy must require that inmates who

participate in a work program (other than personal

housekeeping and housing area cleaning) receive

compensation. Written local policy must specify the type and

amount of compensation.” As plaintiffs allege that the County

determined what plaintiffs would be paid for their services, and

by law the County must specify that amount in a written policy,

plaintiffs allege sufficient facts from which it can be

reasonably implied that the County’s written policy informed

plaintiffs that they would be paid $5.00 a day for their work at

the Center, which they then gave in exchange for that money.

The problems with plaintiffs’ claims, however, are more

fundamental. The crux of their claims is that “[p]ayment into

the commissary accounts is not equivalent to payment by

lawful money of the United States or check. Commissary

accounts, among other things, earn no interest, are tightly

controlled by the Prison, and are subject to various mandatory

deductions by the Prison.” App. 131–32 ¶ 160. But cash and

checks, on their own, earn no interest either. Cash and checks

are also presumably contraband within the prison, which

justifies depositing plaintiffs’ pay into their commissary

accounts, just as cash and checks would be deposited. And

plaintiffs do not allege specific deductions that they contend

made payment into their commissary accounts different than

“lawful money.” Plaintiffs thus fail to state Pennsylvania Wage

Payment and Collection Law claims.

47

G. Unjust Enrichment

The District Court dismissed plaintiffs’ unjust

enrichment claim because it was pleaded as a companion to

plaintiffs’ forced labor and involuntary servitude claims, and

where the unjust enrichment claim rests on the same improper

conduct as the underlying tort claim, the unjust enrichment

claim will rise or fall with the underlying claim. As plaintiffs’

TVPA claims survive against the County, the Authority, and

the Corporation, so do their unjust enrichment claims.

Further, plaintiffs contend that they “plausibly alleged

the three elements of an unjust enrichment claim, independent

from their TVPA and Thirteenth Amendment claims.” Pls.’ Br.

at 53. Those three elements are (1) conferring a benefit on

defendant; (2) defendant’s knowledge of the benefit; and (3)

circumstances are such that defendant’s retention of that

benefit would be unjust. See Allegheny Gen. Hosp. v. Philip

Morris, 228 F.3d 429, 447 (3d Cir. 2000). They allege that they

conferred the benefits of their labor by working at the Center

and the resulting lower operating costs on all defendants. They

allege all defendants knowingly obtained those benefits. And

they allege that defendants’ retention of those benefits was not

only unjust because it was the result of plaintiffs’ unlawfully

forced labor, but because Defendants got those benefits “from

an unfair competitive advantage by paying subminimum wages

into commissary accounts they tightly control.” Pls.’ Br. at 54.

That species of unjust enrichment is more akin to a contract

claim than a tort claim, and rises and falls with their FLSA

claims rather than their TVPA claims.

As plaintiffs plausibly allege that the County, its

Municipal Authority, and the Corporation unjustly retained the

48

yield of their labor, whether by way of a TVPA violation or a

FLSA violation, plaintiffs’ unjust enrichment claims on both

theories survive against those defendants.

IV. CONCLUSION

For the foregoing reasons, we will affirm dismissal of

plaintiffs’ Thirteenth Amendment and Pennsylvania Wage

Payment and Collection Law claims in full, and of their TVPA

and RICO claims against the DeNaples brothers. We will

reverse dismissal of their TVPA, FLSA, Pennsylvania

Minimum Wage Act, and unjust enrichment claims against the

County, the Authority, and the Corporation, and of their RICO

claims against the Corporation and remand.

49

MATEY, Circuit Judge, concurring in part and dissenting in

part.

Choices usually come with consequences. We can

honor our obligations, pursue opportunity, make good on our

debts. Or we can walk the other way and decline to play by the

rules. Ordinarily, law fences these two paths, rewarding

industry and honesty, penalizing irresponsibility. The

majority’s decision moves that line. While I agree Plaintiffs

fail to state claims under the original meaning of the Thirteenth

Amendment 1 and the Pennsylvania Wage Payment and

1

After an abhorrent chapter in our Nation’s history, the

Thirteenth Amendment confirmed the natural rights of all

persons through “a practical application of that self-evident

truth, ‘that all men are created equal; that they are endowed by

their Creator with certain unalienable rights; that among these

are life, liberty and the pursuit of happiness.’” Jacobus

tenBroek, Thirteenth Amendment to the Constitution of the

United States: Consummation to Abolition and Key to the

Fourteenth Amendment, 39 Calif. L. Rev. 171, 178 (1951)

(quoting Cong. Globe, 38th Cong., 2d Sess. 142 (1865)

(statement of Rep. Godlove S. Orth)). The Amendment

reiterated the natural law that supports our Constitution,

making slavery irreconcilable “with the fundamental principles

upon which our government rests.” Joel Tiffany, A Treatise on

the Unconstitutionality of American Slavery (1849), reprinted

in 2 The Reconstruction Amendments: The Essential

Documents 237, 237–38 (Kurt T. Lash ed., 2021) (“All men

are possessed of the same natural rights, secured by the same

natural guarantys—held by the same tenure—their title is

derived from the same source. . . . Deny these truths, and you

destroy the foundation upon which society is based. Violate

them, and you are at war with yourself, with Man and God.”).

The Amendment, rooted in “our ancient faith [that] the just

powers of governments are derived from the consent of the

governed,” recognized that slavery’s existence was “a total

violation of this principle . . . [of] self government.” Abraham

Lincoln, Speech at Peoria, Illinois (Oct. 16, 1854), reprinted in

2 The Collected Works of Abraham Lincoln 247, 265–66 (Roy

Basler ed., 1953). “By the law of nature all men are born free

and equal, and man has no jus dominii in man. . . . [F]or

freedom is the natural right of every man, and slavery is

abridgment by positive law.” Slavery and the Incoming

Administration, in 2 Brownson’s Quarterly Review 65, 109

(1857). See also Dred Scott v. Sandford, 60 U.S. (19 How.)

393, 624 (1857) (Curtis, J., dissenting) (“Slavery, being

contrary to natural right, is created only by municipal law.”).

The Thirteenth Amendment codified the truth that slavery

could be treated as constitutional “only by disregarding the

plain and common-sense reading of the Constitution itself.”

Frederick Douglass, The Constitution of the United States: Is

It Pro-Slavery or Anti-Slavery? (1860), reprinted in 2 The

Reconstruction Amendments: The Essential Documents 303,

308. See also Peter C. Myers, Seed-Time and Harvest-Time:

Natural Law and Rational Hopefulness in Frederick

Douglass’s Life and Times, 99 J. Afr. Am. Hist. 56 (2014),

reprinted in A Political Companion to Frederick Douglass 285,

287 (Neil Roberts ed., 2018) (“Douglass frequently invoked

the law of nature both because he was convinced of its

profound truth and also by virtue of its utility in various

practical applications.”).

None of Plaintiffs’ claims approach a violation of the

natural principles guarded in the Reconstruction Amendments,

nor could the nature of their work approach the atrocities the

2

Collection Law, the majority rescues Plaintiffs from their own

choices by allowing a host of statutory and common law

claims. Respectfully, the District Court’s decision dismissing

the entire action got it right. Despite having the means,

Plaintiffs did not pay child support. Despite Pennsylvania law

giving them recourse to modify that order, they filed no

petitions. Despite having the option not to, Plaintiffs asked to

work during their confinement for contempt. None of these

choices is disputed, none of the facts challenged. Still, claims

of forced servitude, human trafficking, and unfair labor can

now proceed. But regrets do not demand remedies in federal

court, and the fact Plaintiffs’ choices produced unappealing

consequences does not require new definitions of torture and

labor. So I dissent in part from the majority’s decision.

I.

This action began (and really ended) when Plaintiffs

failed to pay child support. No party argues that the court

orders directing Plaintiffs to provide for their children were

unlawful. None dispute that Plaintiffs failed to make those

payments to their families. And there is no disagreement what

happened next: After long periods without paying, each was

cited for civil contempt. Hearings followed and a judge found,

beyond a reasonable doubt, 2 that each Plaintiff had the present

Thirteenth Amendment protects against. Calling what amounts

to a wage and hour dispute a violation of these laws would be

a most remarkable departure from the Amendment’s original

meaning and disrespectful to that historic achievement.

2

See Hyle v. Hyle, 868 A.2d 601, 604–05 (Pa. Super.

Ct. 2005) (“To be found in civil contempt, a party must have

violated a court order” and “the court, in imposing coercive

imprisonment for civil contempt, should set conditions for

3

ability to pay the amounts owed to their children. 3 Pay that

amount, the court ordered, or serve a fixed term in prison for

contempt. That order and those findings have never been

challenged. Not at the contempt hearing. Not on appeal. Not in

a petition to modify the payments, a petition that “may be filed

at any time and shall be granted if the requesting party

demonstrates a substantial change in circumstances.” 23 Pa.

C.S. § 4352(a) (my emphasis). In short, Plaintiffs skipped their

support payments and wound up in contempt of court.

Decisions have consequences.

So how did this turn into a federal question? Neither

Plaintiffs nor the majority are clear. “The law in

[Pennsylvania] is . . . that the trial court must set the conditions

for a purge in such a way as the contemnor has the present

ability to comply with the order.” Hyle, 868 A.2d at 605.

Meaning Plaintiffs could have paid their debt and purged their

contempt. Or, if their circumstances shifted after the hearing,

they could have asked for relief under 23 Pa. C.S. § 4352(a).

Why did Plaintiffs ignore these options? The Complaint—their

second—offers no answers. Instead, there is a single statement

that one Plaintiff, “Mr. Burrell[,] did not have $2,129.34—in

fact, he had nothing close to that.” App. 115, ¶ 28. And one

other line, nearly identically worded for each Plaintiff, noting

that, “lacking any other option, [Plaintiff] was compelled to

purging the contempt and effecting release from imprisonment

with which it is convinced beyond a reasonable doubt, from

the totality of the evidence before it, the contemnor has the

present ability to comply.” (citations and quotations omitted)).

3

Child support payments follow guidelines based on the

means of the parent and the needs of the child. 23 Pa. C.S.

§ 4322(a).

4

work at the Center.” See App. 117, ¶ 36; App. 120, ¶ 67; App.

122, ¶ 88. Allegations that fall below the pleading standards

we regularly enforce in matters prepared by far less

sophisticated counsel. See, e.g., Fantone v. Latini, 780 F.3d

184, 193 (3d Cir. 2015) (noting that even with pro se

complaints, “we nonetheless review the pleading to ensure that

it has ‘sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on [its] face’” (quoting Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009))). That, as the District Court

concisely concluded, means “the undisturbed Court of

Common Pleas orders conclusively established that Plaintiffs

were able to pay the purge at the time of their incarceration,

[and that] Plaintiffs’ conclusory assertions regarding ‘lacking

any option’ but to work at the Center and Plaintiff Burrell’s

statement that he ‘did not have $2,129.43’ are not entitled to a

presumption of truth.” App. 62 (citations omitted).

We do not face men wrongfully imprisoned. Or, as the

United States awkwardly attempted to analogize, women

abducted and forced into sex slavery. See Oral Arg. at 34:03–

34:16 (Counsel for the United States) (“You can imagine

victims of sex trafficking who aren’t—they aren’t—chained in

the room. They’re not locked in the basement. They could

potentially leave.”). Plaintiffs were found in willful contempt

of an order to financially support their children. With ample

process, each received an opportunity to cure his contempt by

paying what he owed. And beyond a reasonable doubt,

5

Plaintiffs had the ability to pay4 and avoid prison altogether.5

If all of that is wrong, Commonwealth courts were, and still

are, available to reconsider.

Properly framed, Plaintiffs’ claims should be dismissed.

Instead, the majority makes room for claims of human

trafficking and unfair labor, reading new meanings into old

laws to draw conclusions reached by no other federal circuit.

That, I believe, is erroneous.

II.

Begin with the Trafficking Victims Protection Act

(“TVPA”). The TVPA prohibits “knowingly provid[ing] or

4

“[M]odification may be applied to an earlier period if

the petitioner was precluded from filing a petition for

modification by reason of a significant physical or mental

disability, misrepresentation of another party or other

compelling reason and if the petitioner, when no longer

precluded, promptly filed a petition.” 23 Pa. C.S. § 4352(e).

True, the process expressly excludes “incarceration for

nonpayment of support.” 23 Pa. C.S. § 4352(a.2). But the purge

amount is set before surrender and calculated on the present

ability to pay. Meaning that right now, Plaintiffs can challenge

the purge amount that led to their contempt.

5

As with the District Court, we need not “determine that

the state court judgment was erroneously entered in order to

grant the requested relief.” In re Knapper, 407 F.3d 573, 581

(3d Cir. 2005) (citation omitted). “[I]f the circumstances in

existence at the time the state court entered the contempt orders

changed thereafter,” “Plaintiffs could have availed themselves

of the provisions of 23 Pa. C.S. § 4352” to modify the orders.

App. 52.

6

obtain[ing] the labor or services of a person” through a host of

unlawful means or “knowingly benefit[ting]” from joining a

venture involving forced labor. 18 U.S.C. § 1589(a), (b).

Claims under the TVPA usually “involve circumstances such

as squalid or otherwise intolerable living conditions,” “threats

of legal process such as arrest or deportation,” and

“exploitation of the victim’s lack of education and familiarity

with the English language, all of which are ‘used to prevent

[vulnerable] victims from leaving and to keep them bound to

their captors.’” Muchira v. Al-Rawaf, 850 F.3d 605, 618–19

(4th Cir. 2017) (quoting United States v. Callahan, 801 F.3d

606, 619 (6th Cir. 2015)) (alteration in original).6 Plaintiffs

6

Not surprisingly, reported TVPA decisions turn on

appalling criminal conduct and shocking depravity. See, e.g.,

Bistline v. Parker, 918 F.3d 849 (10th Cir. 2019) (members of

a congregation shielded a man who engaged in child rape,

forced labor, and extortion); Ricchio v. McLean, 853 F.3d 553,

555 (1st Cir. 2017) (Souter, J.) (prostitution scheme where

“McLean physically and sexually abused Ricchio, repeatedly

raping her, starving and drugging her, and leaving her visibly

haggard and bruised”); United States v. Callahan, 801 F.3d

606, 620 (6th Cir. 2015) (a developmentally disabled young

woman and her minor daughter deprived of food, locked in a

basement for hours on end, forced to beat each other on camera

while “Defendants threatened to show the video to the police

and Children’s Services if [the young woman] talked to any

strangers, went to her mom’s house, or otherwise ‘messed

up’”); United States v. Jungers, 702 F.3d 1066 (8th Cir. 2013)

(purchasers of commercial sex acts with children); United

States v. Dann, 652 F.3d 1160 (9th Cir. 2011) (immigrant

housekeeper who, among other things, was forbidden from

leaving the apartment without permission, denied her passport,

7

allege three theories, but the majority relies on only one: that

Plaintiffs’ labor was procured through the “abuse or threatened

abuse of law or legal process.” 18 U.S.C. § 1589(a)(3), (b). To

sustain a claim under the TVPA’s “abuse of law” clause,

Plaintiffs must plausibly allege the “use of a law or legal

process . . . in any manner or for any purpose for which the law

was not designed, in order to exert pressure on another person

to cause that person to take some action or refrain from taking

some action.” 18 U.S.C. § 1589(c)(1). Plaintiffs point to the

direct acts of the County, and the indirect beneficiaries of those

acts: the Authority, Corporation, and DeNaples. Meaning

Plaintiffs must adequately allege first, that their work at the

recycling facility was obtained through an abuse of law and

legal process, and second, that Defendants knew, or recklessly

disregarded, the fact that their labor was obtained through

unlawful means. The Complaint lacks any allegation, no matter

how generously construed, that plausibly satisfies these

requirements

First, there is no plausible allegation Plaintiffs worked

at the recycling facility because of an abuse of law. Plaintiffs

start generally, stating Defendants (all of them) “force Debtors

to work at the Center before they can ‘qualify’ for work release.

This means that for potentially hundreds of Debtors, forced

threatened with financial harm, and threatened that her children

would suffer harm if she were to leave the employment);

United States v. Todd, 627 F.3d 329 (9th Cir. 2010)

(prostitution ring of young girls who were beaten, threatened,

and, in at least one instance, forced to undergo an abortion).

Sorting recyclables is nothing of the sort.

8

labor has been the price of freedom from incarceration.” 7 App.

113, ¶ 3. That “prevent[s] Debtors from earning wages through

work release that would benefit Debtors and their children,

who would receive those wages through child support

payments.” App. 113, ¶ 4. Meaning Plaintiffs are held as

captives, unable to pay their way to freedom by earning enough

to pay their debts. Appalling, and a likely violation of the

Thirteenth Amendment, if true.

Thankfully, it is not. Because, again, Plaintiffs have not

been incarcerated as debtors and are not ordered to work to pay

their creditors. They are civil contemnors found capable of

paying child support amounts lawfully ordered. Lost in the

discussion, but plain in the law and facts: Plaintiffs did not have

to participate in the Commonwealth’s discretionary work

release program. 8 That is because the work program is not

7

The Complaint refers to Plaintiffs collectively as

“Debtors” in a clumsy attempt, one supposes, to imply a

violation of Bearden v. Georgia, 461 U.S. 660 (1983).

8

See 42 Pa. C.S. § 9812 (“Nothing in this chapter shall

be construed as creating an enforceable right in any person to

participate in an intermediate punishment program in lieu of

incarceration.”). See also Maldonado v. Karnes, No. 3:CV-14-

1330, 2014 WL 5035470, at *5 (M.D. Pa. Oct. 8, 2014) (“An

inmate does not have a protected liberty or property interest in

prison employment. The right to earn wages while incarcerated

is a privilege, not a constitutionally guaranteed right.” (citing

James v. Quinlan, 866 F.2d 627, 629–30 (3d Cir. 1989); Bryan

v. Werner, 516 F.2d 233, 240 (3d Cir. 1975) (“We do not

believe that an inmate’s expectation of keeping a particular

prison job amounts either to a ‘property’ or ‘liberty’ interest

entitled to protection under the due process clause.”)).

9

designed to provide Plaintiffs with an opportunity to earn

money to purge their contempt. Rather, the work program “fills

gaps in local correctional systems and addresses local needs

through expansion of punishment and services available to the

court.” 42 Pa. C.S. § 9803. Calling Plaintiffs “Debtors” in a

“prison” does not make it so. 9

Second, Plaintiffs do not, and cannot, allege Defendants

knowingly benefitted from an abuse of law, 18 U.S.C.

§ 1589(b), or a “venture” that they “knew or should have

known [was] engaged in an act in violation of” the TVPA, 18

U.S.C. § 1595(a). 10 See Muchira, 850 F.3d at 622–23.

9

Left mostly unsaid is what role the Commonwealth

courts are alleged to play in this scheme. Plaintiffs dance up to

the line stating, “[s]ince at least 2006, a significant number of

the prisoners supplied . . . for work at the Center have been

placed in the Prison following civil contempt proceedings for

failure to pay child support.” App. 130, ¶ 145. And that “[u]pon

information and belief, individuals deemed able to pay their

[child] support obligations are routinely held in civil

contempt.” App. 130, ¶ 148. That suggests Defendants enjoy a

steady supply of labor courtesy of an at least tacitly complicit

judiciary. Such shocking suggestions demand far more

specificity if they are to support a civil cause of action.

10

On January 5, 2023, Congress enacted the Abolish

Trafficking Reauthorization Act of 2022, which amended

§ 1595(a) to extend liability to “whoever knowingly benefits

or attempts or conspires to benefit” from a TVPA violation.

Pub. L. No. 117-347, 136 Stat. 6199, 6200. Even assuming the

amendment applies retroactively, the new language does not

cure Plaintiffs’ pleading deficiencies which fail to show a

knowing abuse of the law as required by the TVPA.

10

Plaintiffs, and the majority, offer a single speculation: “No

individual who could pay his way to freedom would choose to

work in the dangerous conditions of the Recycling Center for

just five dollars per day.” Maj. Op. at 12, 23. But that

conclusion contains three problems. For one, it is not alleged.

For another, it could not be alleged because, at the risk of

repetition, there is no allegation that the Commonwealth court

erred in setting the purge amount. And finally, if there were

error, it could be corrected in the Commonwealth courts at any

time. This is my key point of disagreement with the majority.

Speculation about Plaintiffs’ choices cannot substitute for the

allegations in the second amended complaint. Perhaps it is

puzzling why they chose jail over supporting their children.

But it is equally puzzling that Plaintiffs would ignore the ample

opportunities to remedy an incorrect contempt finding,

particularly with the able assistance of the half-dozen attorneys

and students from firms, schools, and clinics backed by public

interest groups and the United States Department of Justice.

Yet that is where we stand.

Nor can the invocation of the “dangerous and disgusting

conditions,” Maj. Op. at 5, and colorful descriptions of “sorting

through trash,” Maj. Op. at 5, 12, carry the ominous

implications Plaintiffs seek. All can agree that working at a

recycling factory is dirty, difficult, and demanding.

Respectfully, to both the majority and the millions of workers

who serve neighborhoods in the Commonwealth and across the

nation, that is the nature of physical labor. Not all sit at a

keyboard. Many would not even if given the choice. The

suggestion that because work is rigorous it must also be

repugnant finds no support in law, logic, or human

11

experience. 11 And it cannot shoulder the weight the majority

assigns, that knowledge of recycling facility conditions allows

an inference of knowledge of an abuse of the law. Because

there is no allegation that Defendants were aware Plaintiffs

supposedly could not pay their purge amounts and could not

redress that legal error through the means provided by the

Commonwealth, and thus could be preyed upon by

Defendants’ exploitative venture. The knowledge requirement

of the TVPA demands much more than an awareness of

11

By describing the work Plaintiffs do as repulsive,

counsel perpetuates the stigmatization of “dirty work,” the

“tasks and occupations that are likely to be perceived as

disgusting or degrading.” See Blake E. Ashforth & Glen E.

Kreiner, “How Can You Do It?”: Dirty Work and the

Challenge of Constructing a Positive Identity, 24 Acad. Mgmt.

Rev. 413, 413 (1999). Occupations like recycling are essential

to society but haunted by “[p]hysical taint,” either by

association “with garbage, death, [or] effluent,” or involving

“particularly noxious or dangerous conditions.” Id. at 415. So

the tasks are hidden, the workers “cast as taboo.” Id. at 416.

Yet, “abundant qualitative research from a wide variety of

occupations indicates that people performing dirty work tend

to retain relatively high occupational esteem and pride.” Id. at

413. Rather than bemoaning the conditions of dirty work with

patronizing concerns, we might note the importance of such

labor and its consistency with the goals of the

Commonwealth’s inmate work program “[t]o provide

opportunities for offenders . . . [to] enhance their ability to

become contributing members of the community.” 42 Pa. C.S.

§ 9803.

12

“grueling” work, Maj. Op. at 17, a contrast illustrated by other

cases.

Take Ricchio v. McLean, where a woman was abducted,

driven to another state, and taken to a motel where she was

“physically and sexually abused” for days, with her tormentor

“raping her, starving and drugging her, and leaving her visibly

haggard and bruised,” all part of “grooming her for service as

a prostitute subject to his control.” 853 F.3d at 555. The motel

owners’ knowledge was evident from the “high-fives” with the

abductor in the parking lot, and visits to the room where they

“nonchalantly ignored Ricchio’s plea for help in escaping” and

witnessed Ricchio kicked and forced back to the rented room

“when she had tried to escape.” Id. All creating a “plausible

understanding” that the motel owners knew their lodge was

being used for rape and assault. Id.

Or Bistline v. Parker, where attorneys

“acknowledged . . . serious legal questions” about “graphic

evidence of the ceremonial rape of little girls.” 918 F.3d at 875

(cleaned up). Still, defendants discussed their client’s “illegal

goals” and aided a “scheme to ‘cloak’ forced labor and ritual

rape of young girls ‘with the superficial trappings of legal

acceptance.’” Id. (citations omitted).

Bistline and Ricchio illustrate the kind of extraordinary

and unusual circumstances necessary to infer knowledge for

TVPA claims. Motel managers cannot feign ignorance of sex

trafficking when they see a woman locked in a room, battered

and pleading to escape. Lawyers may not shrug off evidence of

child abuse and rape and return to drafting trusts. The

knowledge suggested in this case shatters that standard and

turns the TVPA’s goal of “effectuat[ing] the constitutional

prohibitions against slavery and involuntary servitude” into an

13

employment action. Muchira, 850 F.3d at 625. That is wrong,

and as the District Court correctly concluded, Plaintiffs’ TVPA

claims should be dismissed. 12

III.

Arguing in the alternative, Plaintiffs allege that if they

are not slaves or involuntary servants, they must be employees

under the Fair Labor Standards Act (“FLSA”) and the

Pennsylvania Minimum Wage Act. 13 Intricate questions about

whether Defendants are employers, or joint employers, under

the FLSA abound. But they need not be answered because

Plaintiffs are contemnors, not employees, under the best

reading of the FLSA.

Analyzing the FLSA requires that we “proceed[]

methodically” through the statute’s text. Badgerow v. Walters,

142 S. Ct. 1310, 1317 (2022). The goal, as always, is to give

effect to the legislature’s charge, Brown v. Barry, 3 U.S. (3

Dall.) 365, 367 (1797), as expressed in the text’s “ordinary

meaning . . . at the time Congress enacted the statute,” Perrin

v. United States, 444 U.S. 37, 42 (1979). This is a “fundamental

canon of statutory construction.” Wis. Cent. Ltd. v. United

States, 138 S. Ct. 2067, 2074 (2018) (quoting Perrin, 444 U.S.

12

Seeing no TVPA claim stated, I also see no predicate

act supporting a RICO claim. 18 U.S.C. § 1962(c); In re Ins.

Brokerage Antitrust Litig., 618 F.3d 300, 372 & n.69 (3d Cir.

2010).

13

Like the majority, I review Plaintiffs’ claims under

the FLSA, 29 U.S.C. § 206, and the Pennsylvania Minimum

Wage Act, 43 Pa. C.S. § 333.101 et seq., under the same

standards. See Ford-Greene v. NHS, Inc., 106 F. Supp. 3d 590,

612–13 (E.D. Pa. 2015).

14

at 42). See also Minor v. Mechanics’ Bank of Alexandria, 26

U.S. (1 Pet.) 46, 64 (1828). We interpret the language using all

“the standard tools of interpretation,” Kisor v. Wilkie, 139 S.

Ct. 2400, 2414 (2019), reading the words “in their context and

with a view to their place in the overall statutory scheme,”

Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881,

1888 (2019) (citation omitted). See also United States v.

Fisher, 6 U.S. (2 Cranch) 358, 386 (1805) (“It is undoubtedly

a well established principle in the exposition of statutes, that

every part is to be considered, and the intention of the

legislature to be extracted from the whole.”). And where these

efforts lead to multiple ordinary meanings, we adopt “the best

reading” of the statutory text. Yellen v. Confederated Tribes of

Chehalis Rsrv., 141 S. Ct. 2434, 2442 (2021).

A.

The FLSA states an “employee” is “any individual

employed by an employer,” 29 U.S.C. § 203(e)(1), an

explanation that directs us to technical rather than ordinary

meaning. See Lopez v. Att’y Gen., 49 F.4th 231, 234 n.4 (3d

Cir. 2022). While ordinary and competent English speakers

likely have a reasonable understanding of the word, the FLSA

creates a legal distinction to extend particular rights and

benefits to a limited class. See Moskal v. United States, 498

U.S. 103, 121 (1990) (Scalia, J., dissenting) (“[W]hen a statute

employs a term with a specialized legal meaning relevant to the

matter at hand, that meaning governs.”). The definition of

“employee” is part of the specialized guidelines for employers

to comply with requirements for wages and hours, a way to

know who deserves what. Cf. Kasten v. Saint-Gobain

Performance Plastics Corp., 563 U.S. 1, 18 (2011) (Scalia, J.,

dissenting) (looking to the context of the phrase “filed any

complaint” within the FLSA and determining that “at the time

15

the FLSA was passed (and still today) the word [complaint]

when used in a legal context has borne a specialized

meaning”). So the term “must be read by judges with the minds

of the specialists.” Felix Frankfurter, Some Reflections on the

Reading of Statutes, 47 Colum. L. Rev. 527, 536 (1947). 14

Legal sources at the FLSA’s enactment defined

“employee” as “[o]ne who works for an employer,” generally

including “a person working for salary or wages,” but “rarely

to the higher officers of a corporation or government or to

domestic servants.” Black’s Law Dictionary 657 (3d ed. 1933).

Those general concepts yield to specific applications, “and

whether one is an employee or not will depend upon particular

facts and circumstances.” Id.; see, e.g., Walling v. Jacksonville

Paper Co., 317 U.S. 564, 571–72 (1943) (“The applicability of

the Act is dependent on the character of the employees’

work.”). So our focus is not on “isolated factors but rather upon

the circumstances of the whole activity.” Rutherford Food

Corp. v. McComb, 331 U.S. 722, 730 (1947).

The “circumstances of the whole activity” here, the

genesis of Plaintiffs’ work, is their custody. Without the

contempt finding, they would not be committed to the

Lackawanna County Prison. And Plaintiffs agree they are in

custody and that their work is tied to their incarceration. App.

115–16, ¶¶ 24–29 (Burrell); App. 119–20, ¶¶ 60–63, 67

(Huzzard); App. 121–22, ¶¶ 83–88 (Stuckey). Custody is

14

Even though there is not much difference between the

legal and ordinary meaning. See Webster’s New International

Dictionary of the English Language 718 (1930) (defining

employee as “[o]ne employed by another; a clerk or workman

in the service of an employer, usually disting. from official or

officer, or one employed in a position of some authority”).

16

another legal term, meaning “the detainer of a man’s person by

virtue of lawful process or authority,” an “actual

imprisonment.” Black’s Law Dictionary 493–94 (3d ed.

1933). 15 See also Kelley v. Oregon, 273 U.S. 589, 591 (1927)

(describing the plaintiff as being “constantly in the custody of

the warden of the penitentiary inside and outside of the

courtroom, during the trial” and finding “[i]t is a new meaning

attached to the requirement of due process of law that one who

is serving in the penitentiary for a felony and while there

commits a capital offense must, in order to secure a fair trial,

be entirely freed from custody”); Sibray v. United States, 185

F. 401, 403–04 (3d Cir. 1911) (“The custody complained of

must be actual and not constructive” and contrasting someone

“in . . . custody or control” with one “out on bail.”); Smith v.

Commonwealth, 59 Pa. 320, 324 (1869) (“Custody is the

detainer of a person under lawful authority.”).

These “common linguistic intuitions” are “at least

strained by the classification of prisoners as ‘employees.’”

Vanskike v. Peters, 974 F.2d 806, 807 (7th Cir. 1992). First, the

prison does not act as Plaintiffs’ employer. It is, rather, the

caretaker of Plaintiffs “by virtue of lawful process or

authority.” See Black’s Law Dictionary 493–94 (3d ed. 1933).

As such, Plaintiffs are detainees in the prison’s custody, not

employees. Second, Plaintiffs are not persons working for

salary or wages; they are able to voluntarily participate in the

15

A meaning that also mirrors ordinary understanding.

See Webster’s New International Dictionary of the English

Language 554 (1930) (custody means “penal safe-keeping;

control of a thing or person with such actual or constructive

possession as fulfills the purpose of the law or duty requiring

it; specif., as to persons, imprisonment”).

17

recycling center to help “accept, process and market recyclable

commodities.” App. 149 (Operating Agreement between

Center and Authority). That fits squarely into Pennsylvania law

to “fill gaps in local correctional systems and address local

needs through expansion of punishment and services available

to the court.” 42 Pa. C.S. § 9803. Nowhere among these

statutory purposes is earning income. Rather, the programs are

designed with a rehabilitative mindset to benefit both prisoners

and the community—not a typical design for the average

hourly job. All leaving prisoners outside the best legal reading

of the FLSA.

B.

Context confirms that reading, as all laws are “part of

an entire corpus juris,” and we must interpret “laws dealing

with the same subject” “harmoniously.” Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts 252 (2012). See also Carlsbad Tech., Inc. v. HIF Bio,

Inc., 556 U.S. 635, 638 (2009) (noting that the Court “has

consistently held” two statutes “must be read in pari materia”);

Lafferty v. St. Riel, 495 F.3d 72, 81–82 (3d Cir. 2007)

(interpreting two statutes using “the common canon of

statutory construction that similar statutes are to be construed

similarly”). And we “presume that Congress is knowledgeable

about existing law pertinent to the legislation it enacts.”

Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 185 (1988).

Just three years before the FLSA’s passage in 1938, Congress

enacted the Ashurst-Sumners Act of 1935, which targeted

unfair competition derived from prison labor by making it

illegal to knowingly transport goods made by prisoners. See 18

U.S.C. §§ 1761–62. See also Danneskjold v. Hausrath, 82 F.3d

37, 42 (2d Cir. 1996) (“[T]he Ashurst-Summers [sic] Act . . .

regulates the interstate transportation of prison-made goods to

18

avoid competition between low-cost prison labor and free

labor . . . .” (citation omitted)). That, as other courts have held,

is strong reason to conclude prisoners are not employees

protected by the FLSA. See, e.g., Danneskjold, 82 F.3d at 42

(“[T]he continued existence of the Ashurst-Summers [sic]

Act . . . reveals a congressional assumption that prison labor

will not be paid at FLSA minimum wage levels.”); Harker v.

State Use Indus., 990 F.2d 131, 134 (4th Cir. 1993) (“We must

read [the FLSA and Ashurst-Sumners Act] in pari materia . . . .

[T]he FLSA [] does not apply here because Congress has dealt

more specifically with [the problem of prison goods entering

the open market and threatening fair competition] through the

Ashurst-Sumners Act.”); Vanskike, 974 F.2d at 812 (“[T]he

Ashurst-Sumners Act supports the conclusion that Congress

did not intend to extend the FLSA’s definition of ‘employee’

to prisoners working in prison.”).

That is a sensible reading. Unlike the Ashurst-Sumners

Act, the FLSA “was enacted to improve the living conditions

and general well-being of free-world American workers and

their bargaining strength vis-a-vis employers.” Reimonenq v.

Foti, 72 F.3d 472, 476 (5th Cir. 1996). If a prison puts its

inmates “to work, it is to offset some of the cost of keeping

them, or to keep them out of mischief, or to ease their transition

to the world outside, or to equip them with skills and habits that

will make them less likely to return to crime outside.” Bennett

v. Frank, 395 F.3d 409, 410 (7th Cir. 2005). Such goals are

incompatible “with federal regulation of their wages and hours.

The reason the FLSA contains no express exception for

prisoners is probably that the idea was too outlandish to occur

19

to anyone when the legislation was under consideration by

Congress.” Id. 16

Finally, the majority distinguishes between intra-prison

work and work done by prisoners outside of the prison not for

the benefit of the prison. See Maj. Op. at 30–32; Tourscher v.

McCullough, 184 F.3d 236, 243 (3d Cir. 1999) (“[P]risoners

who perform intra-prison work are not entitled to minimum

wages under the FLSA.”). 17 But there is nothing rooted in the

16

Prison work serves a different purpose than the

traditional goal of earning a living. “At its root, the work

release program exists for the benefit of the prisoner himself.

The purpose of the program is to prepare inmates upon release

from prison to function as responsible, self-sufficient members

of society.” Reimonenq, 72 F.3d at 476. “Work has been an

important feature of prison systems in the United States since

the colonial period.” Anthony Pierson, Keith Price & Susan

Coleman, Prison Labor, 4 Pol. Bureaucracy & Just. 12, 13

(2014). And “[t]hose offenders who are employed have fewer

disciplinary infractions in prison, obtain better jobs when

released, and recidivate less than do unemployed prisoners.”

Id. at 12. Concepts consistent with the natural principle that

“[t]he want of a useful and honest occupation is the foundation

of an infinite number of mischiefs.” Jean-Jacques Burlamaqui,

The Principles of Natural and Politic Law 435 (Knud

Haakonssen ed. 2006) (1752).

17

The majority concludes Plaintiffs’ work “mirrors” the

facts in Watson where a Sheriff operated an unauthorized work

release program and assigned prisoners to work for his

daughter and son-in-law. See Maj. Op. at 37; Watson v. Graves,

909 F. 2d 1549, 1551 & n.2 (5th Cir. 1990). Watson applied

the “economic reality test” championed by the Ninth Circuit in

20

text of the FLSA or the original understanding of the term

“employee” that suggests work involving a third party or

taking place outside the prison grounds converts a prisoner’s

status into one of an employee in a formal employment

relationship. Prisoners are not employees under the FLSA

because their work relationships “arise out of their status as

inmates, not employees.” Franks v. Okla. State Indus., 7 F.3d

971, 972 (10th Cir. 1993) (cleaned up) (quoting Williams v.

Meese, 926 F.2d 994, 997 (10th Cir. 1991)). “The state’s

absolute power over appellants is a power that is not a

characteristic of—and indeed is inconsistent with—the

bargained-for exchange of labor which occurs in a true

employer-employee relationship.” Gilbreath v. Cutter

Biological, Inc., 931 F.2d 1320, 1325 (9th Cir. 1991). This

reasoning reaches all prisoners inside and outside the prison

walls.

Plaintiffs were not employees while working at the

Center. No work can untether Plaintiffs from their status as

individuals in custody for contempt. Thus, the motions to

dismiss the FLSA claims were properly granted. 18

Bonnette v. California Health and Welfare Agency, 704 F.2d

1465, 1470 (9th Cir. 1983) and characterized the prisoners as

employees under the FLSA because they worked outside of the

prison. But the economic reality test does not consider the text

of the FLSA and the technical meaning of the word

“employee.” And the statutory history of the FLSA, including

the Ashurst-Sumners Act, casts a shadow on the notion that the

FLSA is Congress’ intended tool for combatting unfair

competition.

18

“Where [an] unjust enrichment claim rests on the

same improper conduct as the underlying tort claim, the unjust

21

IV.

Plaintiffs, really their counsel, have strong opinions.

About holding delinquent dads in contempt when they stop

following court orders and stop supporting their children.

About sanitary work, and whether it serves a salutary purpose.

How to manage a recycling plant. How much to pay prisoners.

All topics fit for consideration by the Commonwealth’s elected

officials. Rather than pursue that option, or provide direct

assistance to Plaintiffs to reduce what is repeatedly claimed to

be an unjust court order, all take the plunge into protracted

litigation. Offering, it seems, no help to Plaintiffs or future

contemnors allegedly laboring endlessly in perpetual

confinement. Moreover, such a ruling diverges from the

traditional and classically ordered principles acknowledging

the great duty parents hold to care for their children 19 and the

enrichment claim will rise or fall with the underlying

claim.” Whitaker v. Herr Foods, Inc., 198 F. Supp. 3d 476, 493

(E.D. Pa. 2016). As Plaintiffs have no valid TVPA or FLSA

claim, they have no unjust enrichment claim, as the District

Court properly concluded.

19

See 2 William Blackstone, Commentaries *435

(1765) (“The duty of parents to provide for the maintenance of

their children is a principle of natural law; an obligation . . .

laid on them not only by nature herself, but by their own proper

act, in bringing them into the world . . . . By begetting them

therefore they have entered into a voluntary obligation, to

endeavour, as far as in them lies, that the life which they have

bestowed shall be supported and preserved. And thus the

children will have a perfect right of receiving maintenance

from their parents.”); Burlamaqui, Principles of Natural and

Politic Law 61 (“Providence for this reason has inspired

22

“great importance to use every endeavour to banish idleness,

that fruitful source of disorders.” Burlamaqui, Principles of

Natural and Politic Law 435. 20

Respectfully, we should follow the sound reasoning of

the District Court and dismiss these novel claims, leaving all

free to work, to petition the government for change, or to

decline to do anything. Such is the usual way of our Republic

and, accordingly, I dissent in part.

parents with that instinct or natural tenderness, which prompts

them so eagerly to delight in the most troublesome cares, for

the preservation and good of those whom they have brought

into the world.”); Samuel Pufendorf, The Whole Duty of Man,

According to the Law of Nature 179 (Knud Haakonssen ed.,

Jean Barbeyrac trans. 2003) (1673) (“Because the Law of

Nature it self, when Man was made a Social Creature, injoin’d

to Parents the Care of their Children.”).

20

See also John Locke, Second Treatise of Government

§§ 32, 42 (1689) (“God, when he gave the world in common to

all mankind, commanded man also to labour, and the penury

of his condition required it of him. . . . [W]hen any one hath

computed, he will then see how much labour makes the far

greatest part of the value of things we enjoy in this

world . . . .”).

23