DOJ: Suit vs federalization barred

The U.S. Department of Justice is asking the federal court to dismiss as barred a local businessman’s lawsuit that seeks to stop the implementation of the federalization law in the CNMI.

DOJ’s senior litigation counsel Theodore W. Atkinson, argued that Joaquin Q. Atalig is in privity with the CNMI with respect to the CNMI’s prior unsuccessful lawsuit to stop the implementation of the Consolidated Natural Resources Act under Covenant and constitutional grounds.

Atalig’s legal claims are either identical to the claims brought by the CNMI or are claims that are shared among all citizens of the Commonwealth and could have been brought in the CNMI lawsuit, said Atkinson.

“The court should therefore dismiss this action because it is barred res judicata,” Atkinson said.

Res judicata, also known as claim preclusion, bars litigation in a subsequent action of any claims that were raised or could have been raised in the prior action.

Atalig, through counsel Joseph E. Horey, filed the lawsuit against Obama, Department of Homeland Security Secretary Janet Napolitano, Interior Secretary Ken Salazar, State Secretary Hillary Clinton, U.S. Labor Secretary Hilda Solis, and U.S. Attorney General Eric Holder.

Atalig wants the court to declare the CNRA (i.e., federalization law) lawfully unenforceable and that its implementation and enforcement is valid and lawful only with the consent of the people of the CNMI.

Atkinson earlier argued that Atalig cannot relitigate claims that the CNMI government had already litigated and lost more than two years ago.

The CNMI government brought the first lawsuit in the U.S. District Court for the District of Columbia in 2008. The district court dismissed the CNMI’s challenge to the CNRA on Nov. 25, 2009, and entered a final judgment in the case last year.

In pleadings filed with the district court on Thursday, Atkinson said that when a state (or territory) seeks to vindicate either sovereign or quasi-sovereign rights and is unsuccessful, the state’s citizens are bound by the final judgment in that action.

“Thus, state-citizen privity exists between Atalig and the CNMI for res judicata purposes,” the lawyer said.

In his opposition to the motion to dismiss, Atalig, through counsel, argued that the doctrine of parens patriae does not create privity between himself and the CNMI because the CNMI filed the lawsuit to protect its own sovereign interests and not the interests of the CNMI’s citizens.

Parens patriae refers to a doctrine that empowers the government or state to be the guardian to the ones who are unable to protect themselves or look after themselves legally.

Atkinson said that regardless of the label, what matters is what where a state brings an action over a matter of common public right—whether characterized as a sovereign or quasi-sovereign interest—a judgment against the state in that action is res judicata as to that state’s citizens, who stand in privity with the state.

Accordingly, Atkinson said, because the CNMI brought the lawsuit over either sovereign or quasi-sovereign interests, there is privity between the CNMI and its citizens—including Atalig.