Mafnas files TRO to stay reassignment

Jose Mafnas

Former Division of Customs and Biosecurity director Jose Mafnas is not letting his abrupt reassignment slide and has taken his battle to the Superior Court, with the filing of a motion for a temporary restraining order against the Department of Finance and Finance Secretary David Atalig to stay his reassignment.

Just a few days following the announcement of his reassignment, Mafnas, through attorney Charity Hodson, filed a motion for a TRO and preliminary injunction against his “demotion.”

A preliminary injunction is a court order refraining a party, in this case the defense, from carrying out an action or decision, in this case Mafnas’ reassignment, to preserve the status quo pending final judgment of the case.

In the motion for a TRO, Hodson said her client wants the court to issue a temporary restraining order pursuant to Rule 65(b) of the NMI Rules of Civil Procedure, preventing Finance from removing Mafnas from his position as Customs and Biosecurity director or to otherwise reinstate him until the court has decided on her client’s motion for a preliminary injunction.

“If the court issues a temporary restraining order without notice, [the court should] schedule a hearing on Mafnas’ motion for preliminary injunction…at the earliest possible time, pursuant to Rule 65(b)(3) of the NMI Rules of Civil Procedure,” she added.

Also, Hodson said, her client is prepared, if necessary, to provide a security payment for the issuance of the temporary restraining order and/or preliminary injunction.

“…Applied for in the sum deemed proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained by this court per Rule 65(c), but asserts that any such costs are minimal and any required security should therefore be minimal,” she said.

According to the memorandum in support of a TRO and preliminary injunction, Hodson argues that Mafnas meets the standard for issuance of a preliminary injunction because his claims have a strong likelihood of success on the merits; because the level of the threat of irreparable harm to her client is high if an injunction is not issued; because the balance of hardships between the parties’ tips in favor of Mafnas; and because an injunction would serve the public interest.

As to the argument of “strong likelihood of success on the merits,” Hodson said to prevail on his claim, Mafnas must show that his likelihood of success is “more than negligible.”

“This court has the authority to declare the rights and other legal relations of any interested party seeking the declaration in a case of actual controversy within its jurisdiction. An actual controversy exists here between Mafnas and the secretary of Finance and/or the Department of Finance and/or the Commonwealth government as to the secretary of Finance’s decision to ‘reassign’ Mafnas to the Department of Commerce,” she said.

Next, Hodson said, the second factor in considering whether injunctive relief should be granted is the level of threat of irreparable harm to the plaintiff if relief is not granted.

“Here, the irreparable harm is the deprivation of a constitutionally protected property interest without due process and the violation of Mafnas’ First Amendment right to hold whatever political affiliation he wishes without fear of interference, which Mr. Mafnas expect will only continue in his ‘reassigned’ position. This irreparable injury will continue to occur, day by day, unless the court affords the requested injunctive relief,” the lawyer said.

Meanwhile, in determining the balance of hardships, Hodson said the court should consider the balance between the harm the plaintiff will face if the injunction is denied and the harm the defendant will face if the injunction is granted.

“Here, if the court denies the preliminary relief requested by Mafnas, the status quo will not be maintained. The purpose of a preliminary injunction is not to determine the status of the case; rather, the purpose is to preserve the status quo between parties pending a final determination of the matter on the merits. The last uncontested status prior to the pending controversy was Mafnas doing his job well, as the director of Customs and Biosecurity when the secretary of Finance issued his de facto adverse decision without prior notice or due process. The defendants will suffer no hardship in having a qualified and competent employee continuing to do his job to protect the Commonwealth’s borders,” she said.

Next, Hodson argues that the public has an interest in ensuring that government agencies follow CNMI laws and regulations, warranting injunctive relief for Mafnas.

“The public is served by ensuring, particularly now in the height of the political season, that the law of the Commonwealth will provide protection of the public’s constitutional rights, and that public employees can assert their voting rights, avail of their Equal Protection rights, and will be free to assert their First Amendment rights without fear of reprisal or interference by their own government,” she said.

Lastly, Hodson said the court may issue a preliminary injunction if the moving party demonstrates a combination of probable success on the merits and the possibility of irreparable harm.

“Mafnas has demonstrated both a combination of probable success on the merits for his claims and has shown more than the possibility of irreparable harm. The violation of Mafnas’ constitutional rights is actual damage that is hard to calculate. Finally, the court may also alternatively issue a preliminary injunction because Mafnas has shown the existence of serious questions going to the merits and a balance of hardships tipping in his favor,” she argued.

Last Thursday, Atalig served Mafnas a memorandum reassigning him to a division under the Department of Commerce, a division that Mafnas claims did not even exist prior to the memorandum.