Lawsuit Hearing Reset to November 29th

November 15, 2011

Some foreign workers have expressed concern and disappointment that the court date for a lawsuit filed  to block the implementation of the CNMI-only guest worker program was moved. The hearing date that was scheduled for November 22, 2011 was moved to November 29, 2011, a day after the date that the federal program goes into effect.

The plaintiff's in the suit are Bonifacio V. Sagana, Manuel T. Vilaga, Gerardo G. De Guzman, Hector T. Sevilla, Carlito J. Marquez, Eduardo M. Elenzano, and Jong Ho Lee, while the defendants are: the Department of Homeland Security Secretary Janet Napolitano, U.S. Citizenship and Immigration Services District Director David Gulick, U.S. Labor Secretary Hilda L. Solis, and U.S. Department of Labor District Director Terrence Trotter.

On November 15, 2011 the defendants' attorney, Theodore W. Atkinson, Senior Litigation Counsel
United States Department of Justice, filed a notice informing U.S. District Judge Ramona Manglona that the Plaintiffs "failed to file a brief or exhibits in support of Plaintiffs’ motion for a preliminary injunction by the November 14, 2011 deadline agreed to by the parties and ordered by the Court."

The notice reads:
On November 10, 2011, Plaintiff’s counsel, Stephen C. Woodruff, filed a motion seeking an extension to November 14, 2011, to file his preliminary to a briefing and hearing schedule for Plaintiff’s preliminary injunction motion. On November 10, 2011, Mr. Woodruff e-mailed undersigned counsel and wrote that he “would start uploading exhibits in the morning.”

To date, Defendants have received none of the briefing or exhibits promised by Mr. Woodruff. Nor has Mr. Woodruff made any effort to contact counsel for Defendants to seek further extension of time, or to explain why he did not meet the agreed-to November 14, 2011 deadline for filing a supporting brief.

Mr. Woodruff proposed the November 14 deadline set by this Court. Mr. Woodruff’s failure to file his brief or any supporting materials by the deadline he chose puts Defendants at a significant disadvantage. Defendants cannot oppose a motion based on briefing it has not yet received, and cannot respond to evidence and exhibits Plaintiffs have not yet offered. The amount of time Defendants have to prepare an opposition is now four business days, and growing shorter.
The document:

Attorney Woodruff filed a declaration in response to the defendants' notice, which declared that  Attorney Atkinson's statements were true, but "there is a cause for this situation."  Attorney Woodruff explained that he encountered computer problems, family obligations, and  Immigration Court cases, which was the cause of the delay. Since filing this notice he filed a brief and an exhibit list.

The declaration:

The plaintiffs exhibit list includes 26 exhibits consisting of reports, documents and articles related to P.L. 110-229, the implementation of the CNMI guest worker program, status recommendations and the plight of the foreign workers. Plaintiff's Exhibit List:

The brief states:
Pursuant to the Administrative Procedure Act (“APA”), “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. Plaintiffs are such persons with respect to the implementation of the CNMI-Only Transitional Worker Classification by defendants.

The APA authorizes a reviewing court to “issue all necessary and appropriate process . . . to preserve status or rights pending conclusion of the review proceedings.” 5 U.S.C. § 705. Several of the Court’s remedial duties are implicated in this case, including “decide all relevant questions of law” and to “interpret constitutional and statutory provisions;” to “compel agency action unlawfully withheld or unreasonably delayed”; and to “hold unlawful and set aside agency action . . . found to be” “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” “contrary to constitutional right, power, privilege, or immunity,” in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706 (1) and  (2)(A), (B) and (C).
The brief outlines the relief that is sought:
1. Enjoin DHS for 180 days from treating any alien lawfully present in the CNMI pursuant to CNMI law on Nov. 27, 2009 as lacking "admitted or paroled" status, removable under 212(a)(6) or 212(a)(7), or otherwise unlawfully present in the United States. 
2. Enjoin DHS for 180 days from treating any alien authorized employment in the CNMI pursuant to CNMI law on Nov. 27, 2009 as not being authorized for employment. 
3. Enjoin USCIS (and DHS generally) for 180 days from enforcing the Nov. 28, 2011 cut-off for CW petitions on behalf of aliens currently present in the CNMI to qualify for continuing stay and employment authorization.
The brief discusses the delay of the release of the final rule and states that a 51 day time period "to obtain a federally-recognized nonimmigrant status is likewise per se unreasonable."

The brief states that the rule fails to follow the intent of Congress:
Moreover, the entire rule is substantively deficient in that it falls to conform with the statutory language and the intent of Congress by restoring a system that effectively indentures the alien worker to an employer. DHS thus inadvertently but effectively is reviving the very evils Congress set out to destroy. This is apparently because DHS never understood those evils or how they were institutionalized by the CNMI regime. Congress expressly mandated a system in which alien workers could protect themselves against abuse and exploitation by offering their labor in a free and open market for the period of time authorized. 
It is for this reason that Congress explicitly provided that aliens holding CNMI-only nonimmigrant transitional worker status “shall be permitted to transfer between employers in the Commonwealth during the period of such alien’s authorized stay therein.” 48 U.S.C. § 1806().The final rule fails to satisfy this statutory command. DHS failed to recognize the distinction in the statutory text between the status obtained by an alien “admitted” as a CW worker and the statutory directive that DHS issue permits to prospective employers of CW workers. Instead, DHS confused the reference to “permits” with the ignominious old CNMI system of permits for workers and used the failed CNMI system (that Congress expressly abrogated) as its model. 
Accordingly, the final rule cannot stand substantively and must be modified to conform with the statutory text and intent of Congress.
The brief states that the plaintiffs will suffer irreparable harm in the absence of an injunction:
Plaintiffs and others similarly situated have already been suffering irreparable harm since DHS published the CW Final Rule on October 7, 2011 and began processing of CW petitions on October 7, 2011 – leaving a mere 81 days for the public to even know what the rule says (or, more precisely, to try to educate themselves) and only 51 days to prepare and support petitions for many thousands of alien workers whose “grandfathered” status from two years ago will evaporate on November 28, 2011. In this context, the opportunities and risk for exploitation abound. The pressure for quick decisions and actions strains the social and economic fabric and leads to rash decisions and rash actions with potentially long-term consequences. Without a preliminary injunction, thousands of alien workers and their families could leave the Commonwealth or be forced into removal proceedings, and businesses disrupted by loss of customers and access to an adequate workforce. The quality of life for the Commonwealth as a whole could deteriorate substantially from the loss of part-time laborers on which households and businesses depend, declining government revenues, and loss of the benefits of a free market in labor.
The brief states that the balance of hardship tips sharply towards the plaintiffs and that a preliminary injunction is in the public interest.

Read the brief:


Anonymous said...

Those are actually pretty good arguments, Dekada Shyster!

The whole APA issue and its effects on contract workers is something Fitial did not have standing to address in his D.D.C. lawsuit. Plus, it was not yet ripe.

I am glad to see this is not simply a reprise of the 2008-2009 litigation, hoping for a different result in a different forum (as Jed Horey's suit seems to be).

Thank you, Wendy, for making these pleadings publicly available, saving the rest of us 8 cents per page.

Anonymous said...

his reason for missing his own deadline shows how laughable our attornies are here..."my dog at my evidence package". DOJ lawyers ate him up and spit him out on his last filing for a habeous and this one will be the same....I wouldn't be suprised if Magnola doesn't saction him for his conduct on both cases.....the 27th is coming please get ready.

Anonymous said...

This is the kind of neglect that got him suspended from practice in District Court before.

Anonymous said...

Why do they hire this attorney? all ready lots of OCWs pay him and he doesn't show in court on the day of cases. even some file bar complaint and nothing. he cheated lots of OCWs with the $100 for a green card and membership to Dekada promise. i don't think he'll win.

Anonymous said...

On this whole picture I hope that this may force some changes can be made to this "Status Quo" system the Feds instituted in regard to the CW regs.
The ones that get to stay (and any that will return to work)should not be "tied" to one employer by contract.
This will insure that the wages are kept low and still subject them to abuses.
More specifically so the house workers, farmers and caregivers.I doubt if any of them ever receive overtime (or if it is even applicable under the CNMI rules)

This guys excuses about his computers would not go very far with me if I was the Judge.
I wonder how many computers are in his office and since this is all on "templates", which even I have on my computer or are downloadable doesn't fly.

I wonder when the hearing date on this will be?
BTW, I wonder what will happen if in fact any of this goes through and some changes are made.
Will the Gov. also go to court to challenge any changes?