Judge nixes request to extend eligibility for CW petitions

The federal court has denied a group of individuals’ motion that seeks to extend the period during which nonresident workers would be eligible for CNMI-only transitional worker status until the court has issued a final ruling on the legality of the CW final rule.

“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,” according to Chief Judge Ramona V. Manglona in her opinion and order issued Friday.

In the 17-page order, Manglona said the plaintiffs have had sufficient time to prepare for the implementation of the CW Final Rule. She said that public interest would not be served by extending the eligibility for CW status petitions for six months.

The plaintiffs’ counsel, Stephen Woodruff, told Saipan Tribune yesterday that Manglona’s decision was pretty much expected, given the high legal standard for a preliminary injunction.

Woodruff said irreparable harm—and in particular, irreparable harm to the plaintiffs—is very difficult to establish.

“Nevertheless, it is clear that the people of the CNMI—both alien and U.S. citizen—need a remedy for the botched implementation of the Subtitle A of Title VII of the Consolidated Natural Resources Act by the Department of Homeland Security, and this lawsuit will go on,” said Woodruff in an email.

The lawyer said they need to study the decision and determine the best way to go forward.

The plaintiffs in this 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 Janet 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. Woodruff argued that the Final Rule is both procedurally and substantially defective.

Woodruff asserted that DHS’ 22-month delay from the time the Interim Rule was reopened for comment until the promulgation of the Final Rule was unreasonable because it gave alien workers and their employers only 51 days after its effective date to apply for the CW program.

Manglona heard the motion last Nov. 29.

In her written ruling, Manglona said the public realistically had nearly two years of notice to plan and prepare for the implementation of the Final Rule.

“This long notice-and-comment period provided adequate time for employers to familiarize themselves with the proposed rule,” Manglona said.

The judge said the publication of the Final Rule, which adopted most of the same terms as the Interim Rule, provided enough notice to employers to take action to retain their foreign employers through the CW application process.

Manglona noted that the two employer plaintiffs themselves were able to file the appropriate CW petitions by the deadline of Nov. 27, the expiration of the two-year grace period.

The judge said DHS complied with the Administrative Procedure Act’s three-step process for rule making in its implementation of the Final Rule.

Manglona said the CNRA’s (federalization law) grace period, in conjunction with the umbrella permits, afforded employers at least two years to adjust to the new federal requirements.

Manglona said the plaintiffs fail to show that there is a connection between their grievances and the Final Rule.

None of the plaintiffs, she said, represented that they have unresolved wage or labor claims against their employers.

She pointed out that provisions of Final Rule give workers greater opportunities to move from one employer to another, reducing the chances of exploitation and abuse.

“Accordingly, the Final Rule complies with the CNRA’s stated goal of protecting workers against exploitation,” Manglona said.

Plaintiffs, the judge said, are essentially asking for an extension of the Nov. 27, 2011, expiration date so that more workers can benefit from the Final Rule.

“However, the expiration of the umbrella permits on Nov. 27, 2011, is a function of the CNRA, which is not challenged in this action,” Manglona said.

She said even if the Final Rule were enjoined, it would have no effect on the expiration date and thus would not help plaintiffs.

On the public interest issue, Manglona said the alien workers who do not have an identified employer willing and able to petition for them now will not necessarily have one in six months.

Second, the judge said, if and when any employer in fact needs and wants to petition for an alien work, that employer may still do so under the Final Rule.

“Whether or not any of the worker plaintiffs will be chosen by the employer is not for the court to decide,” Manglona pointed out.