ATTORNEY Matthew Gregory has asked the federal court to dismiss with prejudice the lawsuit of Customs Director Jose Mafnas against Secretary of Finance David Atalig for failing to state a claim upon which relief can be granted.
Gregory, who represents Atalig in his personal capacity, also requested the court to dismiss all causes of action by Mafnas that alleged violation of a constitutional right.
A former attorney general, Gregory said his client’s conduct did not violate clearly established rights.
“Because the transfer was legal under CNMI law, Atalig was reasonable in his assumption that he was not violating any clearly established right. Therefore, he is entitled to qualified immunity,” Gregory added.
“The allegation of retaliation and a conspiracy between defendants, without any factual content to bolster it…does nothing to enhance the plausibility of plaintiff’s claims against defendants,” he said.
According to Gregory, Mafnas’ transfer “has not chilled his expressions of support for the Palacios-Apatang Campaign.”
“In fact,” the lawyer added, “just hours after the transfer order had been given, plaintiff conducted a press conference in which he expressed such support.”
Citing a previous ruling, Gregory said the next step is to “evaluate plaintiff’s specific factual allegations to determine whether the court can reasonably infer a First Amendment violation from those facts.”
Gregory said, “Plaintiff raises two separate conclusory factual allegations in support of his claims.”
First, Gregory said, “he alleges that Atalig reassigned him due to political animus, and secondly, that Atalig caused him to lose his right to continued employment as a civil service employee.”
But Gregory said Mafnas “has pleaded no facts to show that the protected activity was a substantial or motivating factor in the defendant’s conduct.”
The verified complaint merely alleges texts from the governor’s chief of staff, Wil Castro, “which showed criticism of Mafnas and could be construed as political statements,” Gregory said.
But the verified complaint does not show any connection between the transfer and the texts, he added.
“There are no facts alleged showing collusion between Castro and Atalig, or any connection between support for a political candidate and the transfer,” Gregory added.
The lawyer said his client’s declaration states that at the time the decision to transfer Mafnas was made, Atalig was not aware of plaintiff’s support for another gubernatorial candidate.
“Plaintiff makes a convoluted argument that, even though a lateral transfer is allowed, the action of defendants in reassigning plaintiff somehow violated his rights and constituted retaliation,” Gregory said.
“Exactly how this works is not clear. Plaintiff’s civil service status was unchanged, and therefore no adverse action occurred. Even during the two days that he was reassigned prior to the granting of the preliminary injunction, his compensation and benefits were not altered in any way.”
Gregory also requested the court to have the CNMI government substitute Atalig as defendant in the lawsuit, because the complaint alleged violations of state law, and due to the Commonwealth’s certification that Atalig was acting within the scope of his employment.
Mafnas filed his complaint in the District Court for the NMI in July 2022 and named as defendants Wil Castro, in his personal capacity and in his official capacity as the governor’s chief of staff; Atalig in his personal capacity and in his official capacity as secretary of Finance; and the CNMI government.
Represented by attorney Charity Hodson, Mafnas asked the federal court to, among other things, prevent Atalig from removing Mafnas from his position as Customs director “or to otherwise reinstate [him] pending a decision on the merits” of his complaint.
Mafnas also sought reasonable attorney’s fees and costs, compensatory damages, punitive damages, damages in an amount to be determined according to proof, and for such other relief as the court believes justice requires.
Mafnas likewise requested the court to issue a temporary restraining order and preliminary injunction against the defendants.
Chief Judge Ramona V. Manglona granted the TRO on Aug. 2, which was set to expire on Aug. 16.
On Aug. 15, Judge Manglona granted the parties’ stipulation to issue a preliminary injunction. “A preliminary injunction is necessary to preserve the status quo based on the parties’ stipulation,” the judge said in her order.
Judge Manglona also restrained Atalig from effecting his July 21, 2022 memorandum purporting to reassign Mafnas to a position within the Department of Commerce.
The judge ordered Atalig “to maintain the status quo as it was before the pending controversy, with [Mafnas] employed as the Director of Customs and Biosecurity under the Department of Finance until such time that this case is resolved on the merits or the case has otherwise concluded due to entry of judgment or settlement.”
The judge added, “Defendants shall not interfere with or take any adverse action against plaintiff’s employment as the Director of Customs and Biosecurity under the Department of Finance without legal basis until such time that this case is resolved on the merits or the case has otherwise concluded due to entry of judgment or settlement.”
She told the defendants that “any action by them in violation of the preliminary injunction order may be considered and prosecuted as contempt of this court.”
Mafnas’ posting of the $500 security for the TRO shall be sufficient security for the issuance of a preliminary injunction, the judge added.
She ordered the defendants to file their responsive pleadings, if any, to the verified complaint by Sept. 1, 2022.
Jose Mafnas
