DIVISION of Customs and Bio-Security Director Jose C. Mafnas, through his attorney Charity Hodson, is opposing the Office of the Attorney General’s filing of a certification of scope of employment of Finance Secretary David DLG Atalig, and the notice of substitution of the CNMI government as defendant.
“Plaintiff opposes the certification and substitution on the basis that the Commonwealth may not substitute itself for its employee if the law under which they are sued creates a private right of action or if the action is brought for a violation of the U.S. or CNMI Constitutions,” Hodson said.
“Because 1 CMC § 8153 creates a private right of action for political coercion, and the Reform Act is not the exclusive means of enforcing private rights of action against individuals, the Commonwealth cannot substitute itself for Atalig,” Hodson added.
“Because plaintiff’s first cause of action alleges a violation of the U.S. and CNMI Constitutions, and because plaintiff’s fifth cause of action is for injunctive relief for plaintiff’s causes of action, which include the declaratory judgment for which the Commonwealth has not moved for substitution, as well as plaintiff’s constitutional claim against Atalig in his official capacity, the Commonwealth cannot substitute itself for Atalig and the motion to substitute must also be denied on this ground,” Hodson said.
In July 2022, Mafnas filed a complaint in the District Court for the NMI and named as defendants William M. Castro, in his personal capacity and in his official capacity as the governor’s chief of staff; David DLG Atalig, in his personal capacity and in his official capacity as secretary of Finance; and the CNMI government.
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 is also seeking 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 issued a TRO on Aug. 2 with an expiration date of Aug. 16.
On Aug. 15, 2022, Judge Manglona issued a preliminary injunction in favor of Mafnas “to preserve the status quo based on the parties’ stipulation.”
Castro, who is represented by attorney Colin Thompson, has asked the federal court to dismiss the complaint against him by Mafnas, for failing to state a claim upon which relief can be granted.
Atalig, through attorney Matthew Gregory, also requested the court to dismiss all causes of action by Mafnas that alleged violation of a constitutional right because Atalig’s conduct did not violate clearly established rights and, “because the transfer was legal under CNMI law.”
Mafnas’ lawsuit was triggered by Atalig’s decision in July to transfer the Customs director to the Department of Commerce as the new director of export, importation and public outreach.
Judge Manglona scheduled a hearing for Oct. 6 at 9 a.m.
Jose C. Mafnas
