Manglona sets new motion hearing date in CUC’s, CW-1 workers’ lawsuit

U.S. District Court for the NMI Chief Judge Ramona V. Manglona has set for Sept. 9, 2016 at 9am the new hearing date in a motion for preliminary relief filed by the Commonwealth Utilities Corp. and its 13 foreign workers who are suing the U.S. Department of Homeland Security Secretary Jeh Charles Johnson and others for not acting on their CNMI-only transitional workers (CW-1) permit renewals.

Manglona set the new hearing date after the parties in the lawsuit filed a stipulated briefing schedule on plaintiffs CUC’s and its 13 foreign workers’ amended motion for a preliminary injunctive relief.

In approving the parties’ stipulated briefing schedule, Manglona ordered DHS Secretary Johnson and co-defendants to file their opposition, if any, on or before 2pm on Aug. 20.

CUC and its 13 foreign workers are given until on or before 12pm on Sept. 2 to file their reply to opposition, if any.

Last July 22, Manglona approved the parties’ agreed upon briefing schedule related to plaintiffs’ motion for injunctive relief, including a temporary restraining order. She then set the TRO hearing for Aug. 12.

Last Thursday, CUC and its 13 foreign workers amended their motion to request preliminary injunctive relief only.

As a result, Manglona held a chambers conference on that day, Thursday. Pursuant to that chambers conference, the parties then submitted a stipulated request for a new hearing date and briefing schedule. The judge approved the request.

In CUC’s and its 13 foreign workers’ notice of amended motion for injunctive relief, attorney James S. Sirok said at their request and with the defendants’ agreement, temporary injunctive relief was not issued and considered prior to the hearing then set for Aug. 12.

Sirok said the parties have now agreed that this matter is to proceed and be heard pursuant to the motion for injunctive relief, as an application for a preliminary injunction.

Sirok said the parties continue to agree and stipulate that the hearing on plaintiffs’ motion should not be consolidated with a trial on the merits because of the need of both parties to first develop and present to the court factual scenarios related to the merits of plaintiffs’ lawsuit.

Sirok said these factual scenarios cannot be developed and presented to the court for its final consideration of the merits of the lawsuit without the testimony of certain defendants, or certain members of the defendants’ staff, and other key witnesses.

Sirok said plaintiffs’ request for preliminary injunctive relief continues to be based on the conduct of the U.S. Citizenship and Immigration Services, acting in coordination with DHS and U.S. Immigration and Customs Enforcement in failing to consider CUC’s petitions for the renewal of the 13 CW-1 transitional workers.

Sirok said the defendants also failed to comply with the requirements of Title VII of the Consolidated Natural Resources Act of 2008 when it set the annual numerical limitations (cap) for CW-1 workers working the NMI for the Fiscal Years 2013 through 2016 without first establishing and administering a regulated “system” for this purpose and without taking into consideration the various legislatively mandated standards required to be considered by DHS and UCIS prior to adopting those annual numeral limitations.

Sirok earlier stated that the court’s ruling on their lawsuit will be applicable to the thousands of CW-1 workers and their employers who are also affected by the CW-1 cap system. Many affected CW-1 workers and employers are waiting for the outcome of the hearing.

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.

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

Sirok alleged that the failure of USCIS to make a determination on the CW renewal petitions violates the Administrative Procedure Act.

Sirok alleged that plaintiffs 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.

CUC employs over 300 workers, including 42 non-resident workers.

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

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.