DOJ counsel: Group seem uninterested in pursuing case

A group of individuals that is suing Department of Homeland Security Secretary Janet Napolitano and other federal officials over the implementation and enforcement of the CNMI-only transitional worker Final Rule does not seem to be interested in pursuing the lawsuit, according to a senior U.S. Department of Justice lawyer.

Theodore W. Atkinson of the DOJ’s Civil Division has informed the U.S. District Court for the NMI that the cost of flying from Washington D.C. to Saipan for the hearing is not justified since the plaintiffs do not appear to be interested in pursuing their case.

Once Chief Judge Ramona V. Manglona denied the plaintiffs’ motion for a preliminary hearing injunction, Atkinson said his clients (Napolitano and others) granted their four separate extensions of time to file an amended complaint.

“To date, plaintiffs have not amended their complaint,” said Atkinson in a telephonic conference call filed last week.

Saipan Tribune tried to obtain comments yesterday from attorney Stephen Woodruff, counsel for plaintiffs, but he had yet to reply as of press time.

The plaintiffs in the case are Bonifacio V. Sagana, Manuel T. Vilaga, Gerardo G. De Guzman, Hector T. Sevilla, Carlito J. Marquez, Eduardo M. Elenzano, and Jong Ho Lee.

The respondents are DHS Secretary 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.

The plaintiffs’ lawsuit challenges the implementation and enforcement of the CW Final Rule, which according to Woodruff, is both procedurally and substantially defective.

Atkinson said the respondents requested the court to permit him to participate in the hearing on their motion to dismiss or, in the alternative, for summary judgment, by telephone.

Additionally, Atkinson said, the respondents’ motion to dismiss stands unopposed, even through a response to the motion was due nearly two weeks ago.

The plaintiffs’ response to the motion to dismiss was due on May 10, 2012.

Atkinson said that Woodruff contacted him shortly after the respondents’ motion was filed, but has not contacted him to inform him that he needed more time to file a response.

Finally, Atkinson said, even if a hearing does go forward on the respondents’ as-yet unopposed motion, the issues are straightforward.

He pointed out that Manglona has already considered the merits of this case at length with respect to the motion for a preliminary injunction. Manglona, he noted, has concluded that plaintiffs are not likely to succeed on the merits of their claims.

Atkinson said the May 31 hearing will not require a presentation of evidence but will rest on oral argument alone. “Under these circumstances, respondents’ participation by telephone is warranted,” he said.

Manglona on Thursday granted Atkinson’s request to appear at the hearing via telephonic conference.

On Dec 30, 2011, Manglona denied the plaintiffs’ motion to extend the period during which nonresident workers would be eligible for CNMI-only transitional worker status.

“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 had said.