U.S. Government Response to Preliminary Injunction

December 29, 2008

A little sunshine is welcome in Fitial's lawsuit against the federal government.  Especially since the governor's Acting Attorney General Greg Baka and Secretary of Finance Eloy Inos refused to reveal contract and funding information about the futile lawsuit that Rep. Tina Sablan requested under the Open Government Act.  

Thanks to Dennis Greenia (dengre) for sending me the U.S. Government's MEMORANDUM IN OPPOSITION TO MOTION FOR A PRELIMINARY INJUNCTION. The memorandum was submitted to the District Court on December 15, 2008 by Theodore W Atkinson, Office of Immigration Litigation United States Department of Justice.

The memorandum has three exhibits: Exhibit A is the April 2008 Senate Report that accompanied H.R. 3079 with a section by section analysis; Exhibit B is the Covenant, Basic Document and Annotations, prepared by Herman Marcuse, U.S. Department of Justice; and Exhibit C is the August 2008 GAO Report.

Here are the highlights from the Memorandum which dengre called a "36 page slap-down":

• The need for immediate injunctive relief is not supported by the facts in this case. To date no rules or regulations have been promulgated by DHS, DOL, or any other federal agency. 
  
• Underlying this opposition and the motion to dismiss is the CNMI’s failure to meet fundamental requirements of jurisdiction. The CNMI lacks standing to bring this action, and the action is not ripe. Moreover, even if the CNMI had standing to bring this action, and even if the case were ripe for adjudication, the CNMI cannot prevail because the Covenant unambiguously permits Congress to apply federal immigration laws to the CNMI. The case should be dismissed and this motion denied as moot. The memorandum list four reasons: 1. The CNMI cannot prevail on merits because the alleged harms are speculative and hypothetical; 2. Sections 503 and 105 of the Covenant clearly and unambiguously permit Congress to apply the immigration laws of the United States to the CNMI; 3. The CNMI cannot clearly show that it will suffer irreparable harm if the motion is denied; 4. The CNMI cannot prevail because the balance of the hardships tilts decidedly towards the United States. Federal agencies have begun to embark on the rulemaking necessary to implement the transition program. Granting the injunction would stop that administrative rulemaking process while doing nothing to reverse the economic course of the CNMI.
  

Section I of the Memorandum details the terms of the Covenant between the CNMI and U.S. Governments. This section references the Covenant, Basic Document and Annotations, prepared by Herman Marcuse, U.S. Department of Justice (Sept. 1976). 

Section II of the Memorandum outlines the conditions creating the need for the legislation.  It includes a history of the CNMI-controlled immigration and the bringing in alien workers to the point of alien representing 85% of the workforce in 2000 and the unemployment rate of US citizens being 11 percent.  From this section:

Congress pointed to evidence that the CNMI “does not have, and never will have” the capacity to control its borders, because the CNMI lacks information and resources, and suffers from significant institutional deficiencies. As a result, Congress noted that the CNMI has seen an influx of international organized crime groups ranging from the Russian mafia to Chinese Triads in the CNMI. Moreover, it has led to the increase in the number of U.S. citizens – children of alien workers born on CNMI soil – outside the control of the United States. Moreover, Congress determined that the two systems of immigration were inconsistent in several significant respects, hindering the United States’ ability to comply with international treaties requiring certain treatment under immigration law.  

Lastly, the treatment and condition of alien workers also raised concern in Congress. Congress cited evidence of “a persistent pattern of exploitation and the mistreatment of aliens,” including “cheating on wages, unsafe working conditions, recruitment scams, and even coerced prostitution and abortion.” Congress indicated that it had to take action to protect alien workers in the CNMI, because the CNMI unilaterally withdrew in 1997 from a joint reform effort to address these mounting problems. 

Section III of the memorandum covers the adoptions and terms of the Consolidated Natural Resources Act (CNRA)

DISCUSSION 

There are several sections under the discussion in the memorandum:

I. STANDARDS FOR A PRELIMINARY INJUNCTION :  The U.S. government states that the CNMI does not meet those standards stating, "A preliminary injunction is an “extraordinary and drastic remedy.”

The memorandum states:

"The CNMI cannot prevail because it lacks standing to bring this action, and this case is not ripe for adjudication...However, even if the action did not suffer from fatal jurisdictional defects, the CNMI still could not prevail, because the Covenant unambiguously permits Congress to apply U.S. immigration laws to the CNMI. The motion must be denied."

II. THE CNMI CANNOT PREVAIL BECAUSE THE CNMI LACKS STANDING AND THE CASE IS NOT RIPE, AND THE COVENANT PERMITS CONGRESS TO APPLY FEDERAL IMMIGRATION LAWS TO THE CNMI

There are several main points under this section, but the claims are that the CNMI cannot prevail because it lacks standing; it cannot show injury; the claims of economic injury are unsupported and speculative.  It should probably have read, "Governor Fitial and the Fitial Federalization Fighters cannot prevail" since the lawsuit is not backed by the CNMI Legislature or the Attorney General's Office.

The memorandum challenges the declarations of Richard Pierce, Jacinta Kaipat, Perry Tenorio, Robert Jones, Eloy Inos, Michael Ada and Governor Fitial. It refers to the Declaration of Vicente Santos only in a footnote. From the memorandum (emphasis added):

The Declaration of Richard Pierce

The Declaration of Richard Pierce describes the economic history of the CNMI garment industry, and CNMI’s efforts to exclude foreign workers. Ironically, the declaration complains that “Commonwealth law enforcement and policy officials could see that the federal government would not enforce federal labor laws in the Commonwealth as federal agencies do in the mainland U.S., and that the entire burden of labor law enforcement was falling on the Commonwealth.” Pierce Decl. ¶ 16. Although the declaration launches a broadside attack against the lack of federal regulation at certain times, and the existence of too much regulation at others, nothing in the declaration ties the application of immigration laws to the CNMI to future economic woes in a way that supports the injury claims made in this action.

The Declaration of Jacinta Kaipat

The Declaration of Jacinta Kaipat, Deputy Secretary of the CNMI Department of Labor, contains several pages of information concerning the number of foreign workers in the CNMI, their makeup of the population and workforce, the efforts taken by the Department of Labor to enforce CNMI immigration laws and regulations. It also contains conclusory statements about the social effects of the Act, but provides little in the way of probative evidence regarding the economic impact of the Act. The declaration also describes a survey in which the CNMI Department of Labor concludes that under current U.S. visa requirements, only a small percentage of the CNMI workforce would qualify to obtain a visa. The survey evidence, however, assumes current visa requirements, and ignores the temporary visa requirements of the Act, the implementation of the CNMI/Guam visa program, and the requirement under the Act that agencies take into consideration the economy of the CNMI in applying immigration laws.

The Declaration of Perry Tenorio

Managing Director of the Marianas Visitors Authority, contains a detailed description of the decline of the tourist industry in the CNMI, brought about in part by increased competition from other locales, the loss of airline capacity, the imposition of new fuel surcharges, decline in hotel profitability, and other factors. The declaration also serves to strengthen the United States’ argument in this case, and supports the GAO Report. In his declaration, Mr. Tenorio states that “[f]avorable action by [DHS]” on the visa waiver program mandated by the CNRA “will provide a new impetus for our visitor industry and improve prospects for a significant increase in visitor arrivals in 2009 and 2010.” Tenorio Decl., ¶ 18

The Declaration of Robert Jones

The declaration of Robert Jones, a businessman in the CNMI who owns several restaurant franchises, states that Jones may be harmed by the loss of “all foreign workers” by “2014, unless the so-called transition period is extended,” and that he may gradually suffer economic harm due to the decline of economic stability in the CNMI. However, in the short term – the period relevant to the present motion for a preliminary injunction – Jones’ declaration states that he cannot open a new business, because he needs foreign workers from the Philippines, and not Guam, because the Filipino workers are willing to relocate, and Guamanians are not. Jones attests that if he cannot bring outside workers in from the Philippines, he will not open his business. However, the CNMI is not contesting the authority of the United States to regulate the immigration of new foreign workers, CNMI Memorandum at p. 20.

The Declaration of Eloy Inos

The Declaration of Eloy Inos, Secretary of Finance of the CNMI, details the recent history of the decline of CNMI tax revenues. Inos also predicts that the implementation of the Act will lead to a decline in foreign workers and a general decline of the CNMI economy as a result. In support of that conclusion, however, Inos offers unsupported statements about the macroeconomics of island communities. The declaration does not take into account the avenues of possibilities of rules and regulations yet to be drafted and implemented, and assumes an economic constant concerning the size of the labor pool in the future and the economic conditions following the decline of the CNMI garment industry. The declaration is speculative and conclusory.

The Declaration of Michael Ada

The Declaration of Michael Ada, Secretary of Commerce for the CNMI, provides information concerning the population of the CNMI, tax revenue generation, and other economic data about past and present conditions in the CNMI. It offers no information supporting the alleged claims at issue in the CNMI’s motion.

The Declaration of Governor Fitial

The Declaration of Governor Benigno Fitial also fails to support the motion. Governor Fitial’s declaration, though impassioned concerning the plight of his people, offers only the “belief” of Governor Fitial that the Act will “prolong” the economic depression in the CNMI. The declaration also states that since the passage of the Act, the CNMI has not closed one foreign investment. Although the declaration may show a temporal correlation between the decrease in investment and the passage of the CNRA, the declaration offers nothing to show that the CNRA was the cause of such decrease, which may have just as easily been the result of tremendous economic depression that existed before the CNRA was enacted.

The CNMI did not close one foreign investment since the passage of this Act? What are all the newspaper stories about new investors about then?  Did the governor lie in his declaration? See just my previous post about the Korea-CNMI Connections for references to new investors.

 
The Declaration of Vicente Santos

The declaration of Vicente Santos, an apparent negotiator on the team negotiating for the CNMI, offers Santos’ views and interpretations of the meaning of the Covenant, a declaration that is not relevant given the unambiguous grant of authority to the United States on the face of the Covenant.

The conclusion regarding the declarations as stated in the memorandum:

None of these declarations support the CNMI’s standing in this matter. The declarations merely expose that the economic injuries claimed by the CNMI are purely speculative. The Court should recognize this action for what it is: a disaffection with Congress’s decision to apply federal immigration law to the CNMI as a result of the CNMI’s failure to adequately address growing immigration problems and concerns. This disaffection does not translate into a “concrete and particularized” injury to a legally protected interest.

The memorandum also states, "The CNMI cannot prevail because the Governor Lacks Standing and Authority to Bring This Action on Behalf of the CNMI":

Because the Governor cannot bring a parens patriae action on behalf of his constituents, the Governor only has standing if he has a “procedural interest” in the action separate and apart from his interest as Governor of his people that provides him with a “concrete and particularized” injury in his own right. Hodges v. Abraham, 300 F.3d 432, 444 (4th Cir. 2002). The Governor, however, does not have a procedural interest in this case. Governor Fitial does not identify any specific authority or control giving rise to the protection of a concrete interest on his part. There is nothing in the Complaint or in the motion for a preliminary injunction alleging a concrete proprietary interest concerning the application of immigration laws that provides the Governor, bringing the suit in an official capacity, with standing.

It further states:

Strengthening this jurisdictional barrier is the fact that Governor Fitial does not have the authority to represent the CNMI in this action. Under the CNMI Constitution and the CNMI Code, the Attorney General is responsible for “representing the Commonwealth in all legal matters, and prosecuting violations of Commonwealth law,” CNMI Constitution, Art. III, Sec. 11, and “for handling all cases or controversies arising under the Covenant or the Commonwealth Constitution . . . [and] shall represent the Commonwealth in all cases or controversies whenever adjudicated under the Covenant or Commonwealth Constitution . . . .” 1 CMC § 2154. The office of the CNMI Attorney General is not identified as counsel in the Complaint, and substantial questions have been publicly raised in the CNMI whether this lawsuit is even authorized. See MTD Memorandum, p. 26 n.13. The Governor lacks standing to bring this action, and the CNMI cannot prevail.

This section deserves a standing ovation. I can almost hear all the attorneys, legislators, bloggers and other opponents of lawsuit saying, "I told you so."

III. THE CNMI CANNOT PREVAIL BECAUSE THE COVENANT PERMITS CONGRESS TO APPLY FEDERAL IMMIGRATION LAWS TO THE CNMI 

In this section the U.S. government outlines the reasons that the Covenant and legislation are in sync. From the Senate's section by section analysis:

The Immigration and Naturalization Laws (subsection (a)). The reason this provision is included is to cope with the problems which unrestricted immigration may impose upon small island communities. Congress is aware of these problems . . . It may well be that these problems will have been solved by the termination of the Trusteeship Agreement and that the Immigration and Nationality Act containing adequate protective provisions can then be introduced to the Northern Mariana Islands.

The memorandum states, "Federal courts have consistently found that the Covenant unquestionably establishes that the United States retains sovereignty and “ultimate political authority” over the CNMI." It cites several cases including Sagana vs Tenorio.

The Memorandum clarifies the purpose of federal immigration laws:

Finally, the CNMI overreaches with its argument that the immigration laws to be applied are, in fact, “labor laws” that are solely within the purview and control of the CNMI borders. Laws pertaining to whether aliens are authorized to be present in the United States and, if so, whether they are authorized to be employed in the U.S. labor markets, are exclusively the subject of federal immigration law. U.S. immigration laws affect labor markets. That is one of their purposes, but it does not make them “labor laws.” In any event, characterizing the laws as “labor laws” is immaterial. In several instances, courts have interpreted the Covenant as permitting Congressional application of federal “labor laws” to the CNMI, regardless of claims that CNMI enjoyed sovereign immunity or protection under Sections 103 and 105 of the Covenant.

IV. THE CNMI CANNOT SHOW IRREPARABLE INJURY BECAUSE THE ALLEGED ECONOMIC HARMS ARE SPECULATIVE
From this section:

The CNRA is not scheduled to become functionally operative until June 1, 2009, at the earliest. Even if the alleged injuries were concrete and particularized, the permitting system and other areas of federal regulation will not be fully implemented by the June 1, 2009 date. The injuries claimed are not immediate, but remote. The Court should recognize the CNMI’s claims as speculative, and should deny the preliminary injunction.

V. THE BALANCE OF HARMS WEIGHS AGAINST A PRELIMINARY INJUNCTION
From this section:

The harm to the CNMI in permitting the process of interagency rulemaking to continue until the action is decided on the merits is minimal. As even the CNMI concedes, the Act is not going to be implemented in any manner challenged by the CNMI until June 2009 at the earliest. Even then, the transition period will not end until June 2014, at the earliest. Denying the motion does not harm the CNMI, which will not be affected until months and, with regard to the most significant harms alleged, years into the future. Thus, given “the length of the rulemaking process that would be reopened and the cost to the public of delay in implementation of the rule,” see American Optometric Ass’n v. FTC, 626 F.2d 896, 907 (D.C. Cir. 1980), the balance of harms tilts toward the United States. For this reason, it is also in the public interest to deny the motion.

VI. THE CNRA IS SUBJECT TO RATIONAL BASIS REVIEW, NOT HEIGHTENED SCRUTINY REVIEW UNDER THE EQUAL PROTECTION CLAUSE 

From this section:

Finally, the CNMI’s argument that “the unique situation of the Commonwealth” requires the Court to scrutinize the Act under a more rigorous standard than “rational basis” review is incorrect. The CNMI appears to argue that the Act violates the equal protection doctrine by targeting a class that deserves heightened scrutiny based on lack of political representation. CNMI Memorandum, p. 29.9 ...The CNMI offers no justification for a departure from the rational basis standard of review
for acts of Congress regarding United States territories, and for the application of heightened review under the doctrine of equal protection.

_________________

From reading all of the documents submitted by the Fitial Federalization Fighters and the U.S. government it appears clear to me that Governor Fitial does not have a case.  I am betting that the cased will be dismissed in January.  

I hope Attorney Jane Mack will analyze this from an attorney's perspective!

Links to the other documents and declarations are in these posts:

Federal Government Files Motion to Dismiss
Fitial vs US :Preliminary Injunction and Declarations of the Fitial Federalization Fighters
US Senate Questions McPhee Report

All of the files connected to the Memorandum in Opposition to Motion for a Preliminary Injunction can be downloaded here. Happy reading!