US Labor seeks court ruling that TDHC lawsuit has no merits

U.S. Labor Secretary Thomas E. Perez is asking the U.S. District Court for the NMI to issue a ruling that the owner of Tinian Dynasty Hotel and Casino’s lawsuit that challenges assessment of civil money penalty in the amount of $191,400 against the company has no merits.

Perez, through counsel assistant U.S. attorney Mikel W. Schwab, asked the court to find that the due process violation as claimed by Hong Kong Entertainment (Overseas) Investments Ltd. and its president Kwan Man has no record to support, or any legal argument.

In a motion for summary judgment, Perez requested the court to affirm the Administrative Review Board’s decision that HKE and Man engaged in repeated and willful violations of the overtime provisions of the Fair Labor Standards Act.

Schwab said the compliance agreement allowed for the assessment of a civil money penalty, which was appropriate and was assessed without any due process violations.

Schwab said HKE and Man were afforded notice and an opportunity to be heard.

Schwab noted that the record of the case demonstrates that HKE and Man appeared before an Administrative Law Judge, filed numerous briefs, had their arguments considered and discussed by the ALJ, and received full appellate review before Labor Administrative Review Board.

Schwab said indeed the relevant factors for assessing a civil monetary penalty have been reviewed and considered at multiple administrative levels.

In December 2014, HKE and Man filed the lawsuit against Perez, U.S. Labor Wage and Hour Division David Weil, U.S. Labor Wage and Hour Western Regional administrator Ruben Rosalez, and U.S. Labor Wage and Hour Division district director Terrence Trotter for allegedly violating their due process right over their assessment of civil penalty of $191,400.

HKE and Man, through counsel Bruce Berline, asked the court to declare that the compliance agreement that HKE signed with a Labor investigator precludes Perez and co-defendants from assessing a civil money penalty against HKE and/or Man.

HKE and Man requested the court to set aside the decision of Labor Administrative Review that affirmed Labor Administrative Law Judge’s holding that HKE violated the overtime provisions of the FLSA and the Administrative Law Judge’s imposition of civil penalty of $191,400.

The plaintiffs asked the court to remand the matter back to a Labor Administrative Law Judge with instructions to hold a hearing on the merits regarding the propriety of the civil monetary penalty amount assessed against HKE and Man.

HKE and Man sought the court’s order declaring that the portion of the law that allows the Labor Wage and Hour administrator to determine and assess a civil monetary penalty, in general and/or as applied in this case, violates due process.

According to Berline in the complaint, at the time of the investigation, the federal minimum wage provisions had not been extended to the CNMI and federal authority under the FLSA was limited to overtime pay.