COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS v. US

• Citation: 686 F. Supp.2d 7
• Decision Date: 25 November 2009
• Docket Number: Civil Action No. 08-1572 (PLF).
• Parties: COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: United States District Courts. United States District Court (Columbia)

686 F.Supp.2d 7

COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Civil Action No. 08-1572 (PLF).

United States District Court, District of Columbia.

November 25, 2009.

David W. Debruin, Jonathan F. Olin, William M. Hohengarten, Jenner & Block LLP, Howard Penney Willens, Wilsie Company, LLC, Washington, DC, Sharmila Sohoni, Jenner & Block, LLP, New York, NY, for Plaintiff.

Robin Michelle Meriweather, Assistant United States Attorney, Theodore W. Atkinson, U.S. Department of Justice, Victor M. Lawrence, Office of Immigration Litigation, John E. Drury, Washington, DC, Robert J. O'Connor, O'Connor Berman Dotts & Banes, Saipan, MP, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

This case arises from a dispute between the Commonwealth of the Northern Mariana Islands ("the CNMI" or "the Commonwealth") and the United States concerning the implementation and enforcement of federal legislation that gives the United States government control over immigration into and out of the Commonwealth. In a separate Opinion issued earlier today, 670 F.Supp.2d 65 (D.D.C.2009) ("Opinion I"), the Court upheld the authority of the United States government to enact the challenged statutory provisions.¹ This Opinion addresses the legality of regulations recently promulgated by the Department of Homeland Security ("DHS") to enforce the statute in question.²

The CNMI asks this Court to issue a preliminary injunction barring the implementation of the regulations because, in its view, DHS violated the Administrative Procedure Act, 5 U.S.C. § 501 et seq., in promulgating them. After considering the relevant filings, the oral arguments presented by counsel for the parties on November 23, 2009, and the entire record in this case, the Court finds that the CNMI has established its entitlement to a preliminary injunction.³ As a result, the Court will grant the Commonwealth's motion and enjoin, at least temporarily, the implementation of the regulations.

I. BACKGROUND

As explained in greater detail in the first Opinion in this case released earlier today, the CNMI is a United States territory governed by a mix of federal and local laws. See Opinion I at 80-81. Under the agreement, known as the Covenant, which structures the relationship between the United States and the CNMI, Congress was authorized to enact immigration legislation applicable to the CNMI at any time after November 3, 1986, but chose not to do so until last year—thus permitting the Commonwealth during the interim to retain sole responsibility for the formulation and enforcement of the Islands' immigration policy. See First P.I. Mot. at 3-4. As a result, the Commonwealth's approach to immigration and the admission of foreign workers differs significantly from that of the United States. The CNMI's approach grew out of its belief that the Islands' population of United States citizens and resident foreign nationals could not yield a large enough workforce to support the Commonwealth's economy. To address that problem, the CNMI's government has actively encouraged foreign workers to travel to and take employment within the Commonwealth, id. at 3, and permitted the entry of numerous foreign workers who would not be eligible to enter the United States under federal immigration law. See Kaipat Decl. ¶ 55.

In 2008, concerned about "the need to ensure uniform adherence to long-standing fundamental immigration policies of the United States," Congress passed and President Bush signed the Consolidated Natural Resources Act ("the CNRA"), which, among other things, provides that the immigration laws of the United States will displace those of the CNMI starting on November 28, 2009. See Pub.L. No. 110-229, sec. 702(a), § 6(a)(1), 122 Stat. 754, 854-55 (2008).⁴ To minimize the disruption that could result from the Commonwealth's shift to a new immigration policy, the statute establishes a "transition period" that will commence on November 28, 2009, and end no less than five years after that date. Id. § 6(a)(2). Any individual who is lawfully present in the CNMI pursuant to the Commonwealth's immigration laws at the start of that transition period may remain within the Islands for a grace period that ends on the earlier of (1) the date when that person's right to entry would have expired under Commonwealth law, or (2) November 28, 2011. Id. § 6(e)(1)(A). A foreign worker who wishes to enter the Commonwealth after November 28, 2009, or who is already present in the CNMI but is nearing the end of her grace period, must follow one of two protocols in order to enter or remain in the Islands lawfully: either she must obtain a visa or other authorization under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., or she must obtain a permit issued as part of the "transition program" mandated by the CNRA. Id. § 6(d)(2).

The CNRA transition program provides a means for foreign workers who are not eligible to enter or remain in the Commonwealth under the terms of the INA to work in the Islands lawfully during the transition period. Under the program, the Secretary of DHS is authorized to issue a permit to "prospective employers for each" foreign worker "who would not otherwise be eligible for admission under the" INA. CNRA sec. 702(a), § 6(d)(2). The Secretary generally has broad discretion to decide how many permits will be issued and in what manner they will be allocated, but the CNRA requires that the number of permits granted annually must gradually be reduced to zero by the end of the transition period. Id.

The CNRA was enacted on May 8, 2008. Opp. at 4. On October 27, 2009, without first providing notice and the opportunity for public comment, DHS released an interim rule entitled "Commonwealth of the Northern Mariana Islands Transitional Worker Classification" ("the Interim Permit Rule"). See 74 Fed. Reg. 55,094 (Oct. 27, 2009). Intended to structure and govern the transition program for foreign workers that begins on November 28 2009, the interim rule defines the types of businesses that will be eligible to receive permits for foreign workers, sets a numerical limit on the number of permits that will be granted between November 28, 2009, and September 30, 2010, and delineates requirements that must be met by any employer seeking to obtain a permit. See id. at 55,109-10. Although the notice of the interim rule published in the Federal Register invites comments about the regulations and promises that they will be considered during the formulation of a final rule, DHS acknowledged in the same notice that the interim rule will become effective in its current form on November 27, 2009, id. at 55,094—meaning that the interim rule will take effect without being revised to account for any comments made by members of the public after the rule's publication on October 27. Id. at 55,101.⁵

On September 12, 2008, the Commonwealth filed the instant action, seeking, among other things, to permanently enjoin the implementation of certain provisions of the CNRA, including Section 702(a). See First PI Mot. at 1. At the same time, it filed a motion for a preliminary injunction that would bar those provisions from taking effect prior to the conclusion of this litigation. The defendants filed a motion to dismiss, and the Court heard argument on that motion and on the first motion for a preliminary injunction. While those motions were pending, DHS issued the Interim Permit Rule. On November 2, 2009, the Commonwealth filed an amended complaint, adding an Administrative Procedure Act claim, and moved for a second preliminary injunction, one that would suspend the operation of the Interim Permit Rule until this Court has issued a final ruling on its legality. See Mot. at 17. The Commonwealth argues that the interim rule was promulgated in violation of the APA because DHS wrongfully dispensed with the notice-and-comment procedures required by the statute.

II. DISCUSSION

In deciding whether to grant emergency injunctive relief, the Court must consider (1) whether there is a substantial likelihood that plaintiffs will succeed on the merits of their claim, (2) whether plaintiffs will suffer irreparable injury in the absence of an injunction, (3) the harm to defendants or other interested parties (balance of harms), and (4) whether an injunction would be in the public interest or at least not be adverse to the public interest. See Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C.Cir.2009); Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C.Cir.1998).

Plaintiffs are not required to prevail on each of these factors. Rather, these factors must be viewed as a continuum, with more of one factor compensating for less of another. Davis v. Pension Benefit Guar. Corp., 571 F.3d at 1291-92. "If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak." CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995). An injunction may be justified "where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable injury." Id. Conversely, when the other three factors strongly favor interim relief, a court may grant injunctive relief when the moving party has merely made out a "substantial" case on the merits. The necessary level or degree of likelihood of success that must be shown will vary according to the Court's assessment of other factors. Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843-45 (D.C.Cir.1977). In sum, an injunction may be issued "with either a high probability of success and some injury, or vice versa." Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C.Cir.1985).

A. Success on the Merits

Before promulgating a new rule, federal agencies generally are required by the Administrative Procedure...