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Court refusing to block implementation of ‘Final Rule’

By Andrew O. De Guzman

SAIPAN, CNMI (Marianas Variety, Jan. 3, 2012) – U.S. District Court for the NMI Chief Judge Ramona V. Manglona has denied the motion for preliminary injunction on the implementation and enforcement of U.S. Department of Homeland Security-issued transitional worker, or CW, final rule in the commonwealth.

In her 17-page written ruling, Manglona said: "Notwithstanding the balance of harms or how much the public interest would be served, given the unlikelihood that plaintiffs will succeed on the merits of their claim and the lack of irreparable harm due to the implementation of the final rule, the court concludes that plaintiffs have not established their entitlement to a preliminary injunction."

Manglona said the court found that the "public interest would not be served by extending the eligibility for CW status petitions for six months. First, the alien workers who do not have an identified employer willing and able to petition for them now will not necessarily have one in six months.

Second, if and when any commonwealth employer in fact needs and wants to petition for an alien worker, that employer may still do so under the final rule. Whether or not any of the worker plaintiffs will be chosen by the employer is not for the court to decide."

Variety learned that the written order was sent to lawyers online on Friday afternoon.

"The decision to deny preliminary injunction was pretty much expected by plaintiffs given the high legal standard for a preliminary injunction," said the plaintiffs’ attorney Stephen Woodruff in an email to Variety.

Woodruff added, "Irreparable harm — and in particular, irreparable harm to the named plaintiffs — is very difficult to establish."

Nevertheless, Woodruff said, "it is clear that the people of the CNMI — both alien and U.S. citizen — need a remedy for the botched implementation of the subtitle A of Title VII of the [Consolidated Natural Resources Act or the federalization law] by [the Department of Homeland Security], and this lawsuit will go on."

First, Woodruff said, they need to study the decision and "determine the best way to go forward."

"We need to make our claims more clear and make sure we have the right plaintiffs, right defendants, and right plaintiff classes. It is noteworthy that Judge Manglona expressly declined to ‘address the issue of class certification at this stage of the proceedings,’ " Woodruff said.

"We do think the court misapprehended some elements of the analysis, and in our view the acknowledged technical shortcoming of the pleadings at this stage should not have been a bar to granting a preliminary injunction that we believe would have prevented a great deal of harm," he added.

For example, Woodruff said the court stated that the plaintiffs challenged the reasonableness of the final rule’s effective date.

"Actually, that was not our challenge. Our contention was and is that the effective date conformed with the Administrative Procedure Act but that an effective date — any effective date — that left only 51 days for well over 10,000 affected parties — workers and businesses — to make decisions, plans, arrangements, and ultimately act, is per se unreasonable," Woodruff said.

He added, "This is even more so given that the CNMI-Only Transitional Worker Program put in effect by the final rule failed to conform to the parameters specified by the U.S. Congress — a major defect that could not be challenged until the final rule was published and hence known with certainty."

As a result, Woodruff noted, "[W]e believe it was an error to apply [Chevron, USA, Inc. v. Natural Resources Defense Council…1984] in reference to this case, as the court did. And we have to just simply disagree with the court’s contention that the process ‘afforded employers at least two years to adjust to the new federal requirements’ when those new federal requirements were not even known with certainty until 81 days before the expiration of the ‘grace period’ for alien workers already in the CNMI when U.S. immigration control arrived."

The plaintiffs are Bonifacio V. Sagana, Manuel T. Vilaga, Gerardo G. De Guzman, Hector T. Sevilla, Carlito J. Marquez, Eduardo M. Elenzano and Jong Ho Lee "on behalf of themselves and all others similarly situated."

Vilaga is a U.S. citizen, while Lee is a U.S. permanent resident. The other plaintiffs are long-term guest workers some of whom have U.S. citizen children.

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