Associate David A. Wiseman ordered the plaintiff Emlyn Cortez and the Department of Labor through its secretary Gil M. San Nicolas to show up on Aug. 27, 2009 to discuss the proceedings.
Emlyn Cortez through her counsel Stephen Woodruff asked the court early this month to set a briefing schedule to process her appeal and vacate and set aside the decision of the Labor Department in denying her transfer relief.
Cortez, a foreign national worker said she had a permit application pending with the Labor for employment but her application was denied and an appeal taken from the denial. She said that on Sept. 29, 2008, an administrative order was issued pending her denial case.
She said the order, signed by attorney Deanne C. Siemer for hearing officer Jerry Cody did not state a hearing date or even indicate that a hearing was conducted.
She said the order however, affirmed the denial of her permit application and denied transfer rights to seek another employer. She said the administrative order also ordered her to report to the Labor Enforcement within seven days to arrange for repatriation.
Cortez said the administrative order did not state any reason for the basis of the decision.
She filed an appeal with the Labor secretary on Nov. 14, 2008. On June 11, 2009, she received a secretary’s Order on Appeal signed not by San Nicolas but by Deputy Secretary of Labor Jacinta M. Kaipat.
Cortez said that the position of Deputy Secretary of Labor does not exist in the Commonwealth law and the function of deciding appeals to the secretary of Labor is non-delegable. She said that the document she received last month was not a valid act of the Secretary of Labor.
She said that the supposed appellate review of the Labor secretary was “so cursory that it did not even note that the Sept. 28, 2008 order was signed by Siemer for Cody.
Cortez added that the purported order on appeal contains nothing but a summary of the contents of the original administrative order and her appeal letter. She added that it was issued arbitrarily and capriciously, and the portion where she was ordered to report to the Labor Enforcement within seven days to arrange for repatriation was null and void and derogatory to her right to appeal to the secretary of Labor.
Cortez said that the grounds for her petition for judicial review of agency action is based on the grounds that the order of the secretary of Labor was not lawfully made or issued, not in accordance with applicable law, contrary to constitutional right, power, privilege or immunity, fell short of the plaintiff’s statutory rights, and not supported by substantial evidence. She also said that the order does not conform with applicable law and was made without observance of procedures mandated by applicable laws.
