CUC counsel: Ruling on suit applicable to all affected CW-1 workers, employers

James S. Sirok

The federal court’s ruling on the Commonwealth Utilities Corp.’s and its 13 foreign workers’ lawsuit will be applicable to the thousands of CNMI-only Transitional Worker (CW-1) workers and their employers who are also affected by the CW-1 cap system, according to CUC counsel James S. Sirok.

In CUC’s and its foreign workers’ memorandum in support of a motion for temporary restraining order, Sirok said it is common knowledge within the community, and the CNMI in general, that the CW-1 workforce is a necessary component to the livelihood of the CNMI’s economy.

“Without its presence and participation in the overall work force of the CNMI, there would be significant consequences,” Sirok said.

In this respect, the lawyer said, it is axiomatic that the injunctive relief that they are being requested is in the best interest of the public.

Sirok said while CUC and its affected CW-1 workers bring this lawsuit on their own behalf, and not as a class action, the court’s ruling on their request for injunctive relief, as well as on the underlying merits of the case, will be applicable to the thousands of CW-1 workers and their employers who are currently in the same positions.

Sirok asked the court to enter immediate injunctive relief and a TRO allowing CW-1 plaintiffs to immediately return to work or continue to work whatever the situation may be.

Sirok requested the court to prevent defendants from taking any adverse action against plaintiffs based on this return to work for the temporary period until the court enters a further order for preliminary and permanent injunctive relief.

Sirok said the plaintiffs are not requesting the court’s consideration in issuing a TRO or other injunctive relief prior to the scheduled hearing date on the motion on Aug. 12, 2016.

Following the parties’ request for approval of briefing schedule, U.S. District Court for the NMI Chief Judge Ramona V. Manglona set the TRO hearing for Aug. 12 at 1:30pm and ordered defendants to file opposition, if any, on or before Aug. 6. Plaintiffs’ reply to the opposition, if any, shall be filed on or before Aug. 10.

CUC and its 13 foreign workers affected by CW-1 cap setting system are suing U.S. Department of Homeland Security Secretary Jeh Charles Johnson, U.S. Immigration and Customs Enforcement Director Sarah R. Saldana, and U.S. Citizenship and Immigration Services Director Leon Rodriguez.

Plaintiffs CUC and the foreign workers, through Sirok, alleged that the failure of USCIS to make a determination on the CW renewal petitions violates the Administrative Procedure Act.

The plaintiff alleged that they have suffered a legal wrong because of the conduct of defendants DHS and USCIS in setting the annual CW-1 caps for fiscal years 2013 through 2016.

Sirok said CUC will be adversely affected by the loss of these CW-1 workers in its ability to maintain and operate its power generation facilities on Saipan, Tinian, and Rota.

Sirok asked the court to declare that the failure of USCIS to render a determination on the CW-1 renewal petitions for the 13 workers was unlawful, contrary to law and in violation of plaintiffs’ constitutional rights.

He sought court’s order to enjoin defendants Johnson, Saldana, and Rodriguez and their subordinate officers and agents from implementing or enforcing or taking any adverse action against CUC and the 13 workers by not allowing the workers to work for the utility agency and instead requiring them to depart the CNMI during the pendency of this lawsuit.

The CW-1 permits for each of the 13 workers expire at different dates during the months for June, July, August, and September 2016.

In plaintiffs’ motion for TRO filed on Thursday, Sirok said their request is based on the conduct of the USCIS, acting in coordination with the DHS and ICE, in failing to consider CUC’s petitions for the renewal of the 13 individually named CW-1 transitional workers and for failing to comply with the requirements of Title VII of the Consolidated Natural Resources Act when it set the annual reduction number for CW-1 transitional workers working the NMI for Fiscal Years 2013 through 2016.

Sirok argued that the CW-1 transitional worker’s authorization (licenses) and their inextricably intertwined authorization to work, do not expire until USCIS makes a formal determination on the respective applications for the renewal of these licenses.

In other words, he said, USCIS may not simply reject the petitions and send them back to CUC without making a formal determination.

Sirok further argued that the CW-1 caps set by DHS for FY 2013 through FY 2016 were not set in accordance the standards and provisions required by Title VII of the CNRA.

Sirok said as a result of the wrongful conduct of these U.S. government entities, CUC and the individually named plaintiffs have suffered and will continue to suffer immediate irreparable harm.

Sirok said they requested a TRO because irreparable harm to plaintiffs has already occurred and that immediate irreparable harm to plaintiffs is ongoing.

Specifically, Sirok said, some of the plaintiffs have already been forced to leave the CNMI and others whose CW-1 permits are expiring July and later will be forced to leave the Commonwealth without any chance of their petitions being considered.

CUC employs over 300 workers, including 42 nonresident workers.

Sirok said the foreign workers’ work force within CUC is an essential and necessary work force needed for the utility to provide power, water and wastewater utility services to the CNMI.

Sirok said this need is emphasized by the fact that the CNMI governor has continuously, on a 30-day basis over the last several years, executed a special executive order declaring a state of significant emergency involving CUC, thereby allowing the utility to retain and employ these nonresident workers.

Sirok said these executive orders are consistently issued because there are not enough U.S. citizens or U.S. resident technical specialists at CUC to perform the power generation work; particularly specialists with experience in the type of engines that CUC uses at its main power plant.

Sirok said there would be brownouts or area blackouts with the loss of service.

He said the power plants would again degrade, producing more of these outages and the affected foreign workers are technical specialists who perform a variety of highly technical services for CUC at its main power plant on Saipan, with the exception of a senior engineering technician who performs technical services for CUC’s water waste water divisions.

“They are specialists in the type of massive power generation engines which the utility uses to generate power,” he said.

Sirok said they are specialists with a combined total of over 91 years of experience at CUC dealing with the utility’s actual power generation engines.

Sirok said USCIS rejected without review CUC’s petitions for renewal of the workers’ respective CW-1 authorizations.

On June 17, 2016, CUC received notices from DHS and USCIS that the CW-1 petitions were returned to CUC without a decision being made.

DHS set the CW-1 caps for FY 2013 at 15,000 and for FY 2014 at 14,000. For FYs 2015 and 2016, the caps were set at 13,999 and 12,999, respectively.