FSM SUPREME COURT APPELLATE DIVISION
Cite as Kosrae v. Skilling
11 FSM Intrm. 311 (App. 2003)

[11 FSM Intrm. 311]

STATE OF KOSRAE,
Appellant,
 
 
vs.
 
 
SHIRO N. SKILLING
Appellee.
 
APPEAL CASE NO. K2-2001
 
OPINION
 
Argued: October 22, 2002
 
Decided: January 9, 2003

[11 FSM Intrm. 312]

BEFORE:
 
       Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
       Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
       Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
 
APPEARANCES:
 
For the Appellant:                   Edward Buckingham, Esq.
                                                 Assistant Attorney General
                                                 Office of the Kosrae Attorney General
                                                 P.O. Box 870
                                                 Lelu, Kosrae FM 96944
 
For the Appellee:                   Sasaki L. George, Esq.
                                                 Micronesian Legal Services Corporation
                                                 P.O. Box 38
                                                 Lelu, Kosrae FM 96944

* * * *

HEADNOTES

Appellate Review ) Standard of Review; Civil Procedure ) Summary Judgment
      The same standard that a trial court uses in its determination of a motion for summary judgment is applied de novo by the appellate court. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Kosrae v. Skilling, 11 FSM Intrm. 311, 315 (App. 2003).
 
Appellate Review ) Standard of Review; Statutes of Limitation
     The review of legal errors is de novo. The questions of when a statute of limitations begins to run, and whether a claim is barred by the statute of limitations, are questions of law and to be reviewed de novo. Kosrae v. Skilling, 11 FSM Intrm. 311, 315 (App. 2003).
 
Statutes of Limitation
      A cause of action accrues when the right to bring suit to a claim is complete. This is established at the time when the plaintiff could have first maintained the action to a successful conclusion. Kosrae v. Skilling, 11 FSM Intrm. 311, 315 (App. 2003).
 
Administrative Law; Statutes of Limitation; Public Officers and Employees ) Kosrae
     When, despite several tries by counsel, a state employees 1987 written grievance was never acted upon due to the states inaction throughout the administrative process although the applicable statutes entitled him to a written response, the employees cause of action accrued and the statute of limitations began to run only when he left state employment in 1997. The states own inaction cannot be used to run against the six-year statute of limitations. Kosrae v. Skilling, 11 FSM Intrm. 311, 316-17 (App. 2003).
 
Equity ) Laches; Statutes of Limitation
      Laches and the statute of limitations are two different defenses. The statute of limitations defense has only one element, which is the passage of a specific statutorily set amount of time. The equitable defense of laches has two elements. One element is the passage of a nonspecific amount of

[11 FSM Intrm. 313]

time during which the plaintiff engages in inexcusable delay or lack of diligence in bringing suit, and the other element is the resulting prejudice to the defendant. Kosrae v. Skilling, 11 FSM Intrm. 311, 318 (App. 2003).
 
Equity ) Laches; Statutes of Limitation
     Unlike statutes of limitation, which bar an action after a fixed period of time, laches depends upon considerations of fairness, justice, and equity, and is invoked when the applicable statute of limitations has not yet passed. Kosrae v. Skilling, 11 FSM Intrm. 311, 318 (App. 2003).
 
Appellate Review ) Standard of Review; Equity ) Laches
      There is a two part standard of review for a laches defense since laches is a mixed question of law and fact. Whether the elements of laches have been established is a factual determination which depends upon the cases circumstances, and calls for an appellate court to apply an abuse of discretion standard of review. But whether, in view of the established facts, it would be equitable or unjust to the defendant to enforce the complainants right is a question of law that is reviewed de novo. Kosrae v. Skilling, 11 FSM Intrm. 311, 318 (App. 2003).
 
Equity ) Laches
      There was no abuse of discretion by the trial court in finding that the state had not satisfied the laches requirement of showing prejudice due to the passage of time before the plaintiff brought his action when any resulting prejudice due to a witnesss death was not significant as other pertinent records and witnesses still existed and because there was no resulting prejudice to the state in light of its joint stipulation of facts and documents. Kosrae v. Skilling, 11 FSM Intrm. 311, 318 (App. 2003).
 
Equity ) Laches
      The equitable doctrine of laches cannot be invoked when a party has failed to act properly or is said to have "unclean hands." Kosrae v. Skilling, 11 FSM Intrm. 311, 318 (App. 2003).
 
Equity ) Laches; Public Officers and Employees ) Kosrae
      When a state employee did not engage in inexcusable delay or a lack of diligence in bringing suit, as the delay was caused by his engaging the administrative grievance process and waiting for the states required response, and when the state, by its own inaction on the employees claims, was not in compliance with the applicable regulation and statute, failed to act properly with regard to his grievance, the state, being the cause of the delay, cannot invoke the equitable doctrine of laches. Kosrae v. Skilling, 11 FSM Intrm. 311, 318 (App. 2003).

* * * *

COURTS OPINION

DENNIS YAMASE, Associate Justice:

     The State of Kosrae ("State") appeals from the denial of its motion for summary judgment in Shiro N. Skillings ("Skilling") salary claim brought in the Kosrae State Court Trial Division. On appeal, the State contends that the six year statute of limitations under Kosrae State Code ("KC"), Section 6.2506 had already run when Skilling brought his action in the trial court and that Skillings cause of action is barred under the doctrine of laches. We disagree, holding that Skillings action was brought within the applicable statute of limitations and that his action is not barred by the doctrine of laches. Accordingly, we affirm the judgment of the trial court.

[11 FSM Intrm. 314]

I.  Background

     The plaintiff below, Shiro N. Skilling, was employed by the State of Kosrae as a Custodial Worker II. On April 12, 1987, Skilling was reallocated to the position of Building Maintenance Man. When reallocation occurred, Skilling was assigned pay level 7/5 or $128.00 bi-weekly, which was the same pay as his position prior to reallocation. Skilling asserted that upon reallocation he was entitled to a higher salary, pursuant to Kosrae State Public Service Regulation ("Public Service Regulation") 6.7(a).1

      On September 1, 1987, Skilling wrote to his supervisor, Kosrae High School Principal, Joel Tilfas, requesting favorable consideration for a pay increase. Principal Tilfas did not respond to Skillings request.

     On November 11, 1991, Micronesian Legal Services Corporation ("MLSC"), on behalf of Skilling, wrote to then-Director of Education, Luey K. Luey, asking him to remedy Skillings misallocation, and suggesting that Skilling was due back pay to April 12, 1987. Director of Education Luey did not respond to MLSCs letter. Skilling terminated his employment with the State in 1997.

     On April 4, 1998, Skilling, again through MLSC, wrote to then-Director of Education, Henry E. Robert regarding his grievance. Director of Education Robert did not respond to MLSCs letter.

     Skilling made other submissions to the State in 2000 in support of his claim for back wages. Skilling filed his complaint with the Kosrae State Court Trial Division on July 24, 2000.

      The State filed its motion for summary judgment on November 2, 2000. Both sides filed a joint stipulation of facts and documents on December 14, 2000. On December 28, 2000, the trial court issued an order denying defendants motion for summary judgment. [Skilling v. Kosrae, 9 FSM Intrm. 608 (Kos. S. Ct. Tr. 2000).]

      The trial court found that accrual of Skillings cause of action occurred in 1997, when he terminated his employment with the State and was no longer subject to the administrative procedures governing grievances under KC, Title 52 and Executive Service Regulation 113 . The trial court also found that the doctrine of laches did not bar his law suit because the State had shown no resulting prejudice and had unclean hands due to its failure to comply with the applicable regulations.

      On May 9, 2001, the parties entered into a stipulation of damages, subject to the States right to appeal the denial of its motion for summary judgment. The trial court entered judgment in favor of Skilling on May 14, 2001. The State of Kosrae then brought this appeal.

[11 FSM Intrm. 315]

II.  Issues

     The issues presented in this case are as follows:

1. Did the trial court correctly find that the cause of action accrued and the applicable statute of limitations began to run in 1997, when Skilling left State employment?

2. Did the trial court correctly find that the doctrine of laches was not available to the State in this case?

III.  Discussion

1.  The Statute of Limitations

      The State argues that the applicable statute of limitations commenced when Skilling knew, or should have known, his pay level was incorrect and he could have maintained a successful action in court. The State contends that the statute of limitations should have begun to run from November 4, 1991, when MLSC, on behalf of Skilling, sent a letter to Director of Education Luey K. Luey and received no response.

      The trial court found that the accrual of the cause of action occurred in 1997, when Skilling terminated his employment with the State and was no longer subject to the administrative procedures required by KC, Title 5 and Title 18.

      The same standard that a trial court uses in its determination of a motion for summary judgment under Rule 56 of the Rules of Civil Procedure for the Kosrae State Court is applied de novo by the appellate court. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. An appellate court can review for errors of law, as well as errors of fact. The review of legal errors is de novo. Tafunsak v. Kosrae, 7 FSM Intrm. 344, 347 (App. 1995); Nanpei v. Kihara, 7 FSM Intrm. 319, 323-24 (App. 1995).

      The questions of when a statute of limitations begins to run, and whether a claim is barred by the statute of limitations, are questions of law and to be reviewed de novo. Cf. Nahnken of Nett v. United States, 7 FSM Intrm. 581 (App. 1996); Damarlane v. United States, 8 FSM Intrm. 45 (App. 1997).

      The applicable statute of limitations provision is not in dispute and is found in KC, Title 6, Section 6.2506, which states: "Section 6.2506. Limitation of six years. Commencement of an action not stated in Sections 6.2503, 6.2504, or 6.2505 occurs within six years after the accrual of the cause of action." (emphasis added).

      The initial question is when did Skillings cause of action accrue. A cause of action accrues when the right to bring suit to a claim is complete. This is established at the time when the plaintiff could have first maintained the action to a successful conclusion. Waguk v. Kosrae Island Credit Union, 6 FSM Intrm. 14, 17 (App. 1993).

      In analyzing this question, we examine the applicable Kosrae State law and regulations. The trial court correctly determined that while Skilling was an employee, he was subject to the administrative procedures specified for grievances under KC, Title 5, governing the Executive Service. KC, Section 5.429, provides, in part:

[11 FSM Intrm. 316]

Section 5.429. Grievance.

(1) By regulation the Director provides a procedure for the presentation and hearing of a grievance.

(2) The Governor hears a grievance by an employee in the office of Personnel and Employment Services. The Director hears all other grievances.

(3) Upon hearing a grievance the official states his findings concerning the grievance and orders whatever action he finds appropriate to a resolution of the grievance.

. . . .

(emphasis added).

       The trial court further found that Executive Service Regulation 11 was applicable to Skillings claim. The pertinent parts of Executive Service Regulation 11.2 state, in part:

11.2 Grievance Procedure.

a. Grievance may be presented either orally or in writing. An employee may present a grievance concerning a continuing practice or condition at any time. . . .

b. An employee shall ordinarily present a grievance first to his immediate supervisor. If the employee believes that he has a valid reason for not taking the grievance to his immediate supervisor, or if his immediate supervisor so authorizes, he may submit his grievance to a supervisor or management official of higher rank than the employees immediate supervisor. If the employee believes that he has a valid reason for not taking the grievance to any official in his agency, or if his grievance is not settled to his satisfaction by officials in his agency, he shall submit his grievance to the Director . . . . The Director . . . will make written findings in the manner required by Kosrae Code Section 5.423 and order appropriate action, if any. The employee shall be given prompt written notice of the findings of any orders.

. . . .

(emphasis added).

The requirement for written findings under KC, Title 5, Section 5.423 state as follows:

Section 5.423. Written finding. When this chapter allows discretion to the Director or a management official or requires a finding, he expresses his finding in writing which is available to an interested person who requests to review it. A finding states in detail its grounds and may not rely on a general ground such as the public interest.

(emphasis added).

      After Skilling was reallocated to his new position and did not receive his proper placement and salary, he submitted a request for a pay increase in writing, to his supervisor, Principal Joel Tilfas of Kosrae High School on September 9, 1987. His action was consistent with the grievance procedure set forth in Executive Service Regulation 11.2(b). He received no response from his supervisor.

     Having received no response from his supervisor, Skilling, through MLSC, wrote to then-Director of Education Luey K. Luey on November 4, 1991, requesting Director Luey to remedy Skillings misallocation, and suggesting to him that Skilling was due back pay from April 12, 1987. Skillings actions were again in accordance with Executive Service Regulation 11.2(b) and it is clear, especially

[11 FSM Intrm. 317]

from the involvement of MLSC, that Skilling was involved in a grievance. At this time, the Director of Education was required to provide written findings. Skilling also had rights as an employee as set forth in KC, Title 5, Section 5.402. The pertinent part of Section 5.402 states: "Section 5.402. Employee rights. A permanent employee has the right to: . . . (3) present his views in a grievance hearing concerning his working conditions, status, pay, and related matters and to having a response to, or resolution of, the grievance. . . ."

     The Director of Education did not respond to Skillings grievance, nor did he afford him a hearing. The trial court correctly found that Skilling was entitled to a written response or a resolution of his grievance pursuant to Executive Service Regulation 11.2(b) and KC, Title 5, Section 5.423. In light of the aforementioned findings, the trial court found, and we agree, that Skillings administrative action was still pending when he retired in 1997, because the State had never ruled on his grievance.

     At this stage, it cannot be said that Skilling was sitting on his rights as there was still no response by the State on Skillings grievance. In fact, Skilling again made a request, through MLSC, to Director of Education Henry E. Robert for a resolution of his grievance in April, 1998. By that time Skilling had already left State employment.

     The fact that Skilling, while an employee of the State, did not bring his suit earlier was not inexcusable delay or a lack of diligence on his part, in light of the States inaction throughout this administrative grievance process. It cannot be said that Skillings cause of action accrued on November 4, 1991 when MLSC wrote to Director of Education Luey, or at any time earlier, as the administrative grievance process was still pending. Importantly, both the applicable statutes and regulations at the time do not contain any specific time period for the State to act. It should also be noted that under Executive Service Regulation 11.2(a), an employee may present a grievance concerning a continuing practice or condition at any time. Once Skilling began the administrative process, he was entitled to some resolution of his grievance pursuant to KC, Title 5, Section 5.423 and his rights as an employee pursuant to KC, Title 5, Section 5.402.

     If the State had seen to the timely completion of the administrative process on Skillings grievance, after Skillings written requests either to his supervisor or to his Director, the whole process could have been greatly shortened. If Skilling had not prevailed on his grievance, then he could have sought review of the decision in the courts, within the applicable six year statute of limitations. The statute of limitations would have begun to toll as soon as the administrative grievance process had been completed.

      The State is essentially asking us to allow the time of inaction by the State to run against the six year statute of limitations and find that the limitation period has expired. If we did so, we would be condoning a situation where the Director or other appropriate management official simply delayed acting on a grievance until the applicable statute of limitations ran out. Under this particular factual setting, employees would receive no administrative resolution of their grievance and they would also be precluded from making their claims in court. We cannot come to such a conclusion.

      For all of the aforementioned reasons, we affirm the trial courts decision that under the facts of this case, the applicable statute of limitations began to run at the time Skilling left State employment in 1997.

2.  The Doctrine of Laches

     The State further argues that Skillings action should be barred by the doctrine of laches in that he engaged in inexcusable delay or a lack of diligence in bringing his suit, which resulted in prejudice

[11 FSM Intrm. 318]

to the State. The State brought up the passing of Director of Education Luey K. Luey as being prejudicial to the State. Director of Education Luey was the recipient of the letter from MLSC on November 4, 1991 and, due to his passing, was no longer available to the State as a witness. The State has asserted that his unavailability prejudiced the State in the preparation of its defense against Skillings claim.

     Laches and the statute of limitations are two different defenses. The statute of limitations defense has only one element, which is the passage of a specific statutorily set amount of time. The equitable defense of laches has two elements. One element is the passage of a nonspecific amount of time during which the plaintiff engages in inexcusable delay or lack of diligence in bringing suit, and the other element is the resulting prejudice to the defendant. Unlike statutes of limitation, which bar an action after a fixed period of time, laches depends upon considerations of fairness, justice, and equity, and is invoked when the applicable statute of limitations has not yet passed. Nahnken of Nett v. Pohnpei, 7 FSM Intrm. 485, 489 (App. 1996).

      There is a two part standard of review for a laches defense since laches is a mixed question of law and fact. Whether the elements of laches have been established in any particular case is a factual determination which depends upon the circumstances, and calls for us to apply an abuse of discretion standard of review. But whether, in view of the established facts, it would be equitable or unjust to the defendant to enforce the complainants right is a question of law that we review de novo. Id.

      We find here that there was no abuse of discretion by the trial court in finding that the State had not satisfied the requirement of showing prejudice due to the time which passed before Skilling brought his action. The State did assert on appeal that it had been prejudiced due to the passing of Director of Education Luey, but any resulting prejudice here was not significant as other pertinent records and witnesses in this case still existed. Further, there was no resulting prejudice to the State in light of the joint stipulation of facts and documents filed on December 14, 2000. In that document, the State stipulated that Skilling should have received a one step increase when he was reallocated from Custodial Worker II to Building Maintenance Man, effective April 12, 1987, in accordance with Personnel Service Regulation 6.7(a).

      The equitable doctrine of laches cannot be invoked when a party has failed to act properly or is said to have "unclean hands." Nahnken of Nett, 7 FSM Intrm. at 491. We find here that Skilling did not engage in inexcusable delay or a lack of diligence in bringing suit, as his delay was caused by his engaging the administrative grievance process and waiting for a required response by the State. Skilling made repeated, but unsuccessful, attempts to get the State to respond to his grievance. This was a response that the State was required to provide pursuant to Executive Service Regulation 11.2(b) and KC, Title 5, Section 5.423. The State, by its inaction on Skillings claims, was not in compliance with the applicable regulation and statute, and failed to act properly with regard to his grievance. The State, being the cause of the delay, therefore cannot invoke the equitable doctrine of laches.

      For these reasons, we affirm the trial courts rejection of the States arguments that this suit is barred by the doctrine of laches.

IV.  Conclusion

       For all of the aforementioned reasons, we find that the action below was brought in a timely manner within the applicable statute of limitations that began to toll in 1997 and that this action is not barred by the doctrine of laches. We, therefore, affirm the order of the trial court in denying the States motion for summary judgment.

* * * *

_____________________________________

Footnotes:

1.  Public Service Regulation 6.7(a) states as follows: "6.7 Reallocation of Position a. An employee whose position is reallocated to a class assigned a higher pay level shall be compensated at the lowest step in the higher pay level which at least equals the amount of one (1) step increase in the lower pay level. . . ."

The parties entered into a stipulation of damages on May 9, 2001 that set forth that Skilling should have been assigned pay level 7/6, or $135.04 bi-weekly at the time of reallocation.

2.  Repealed October 1, 1997.

3.  Repealed October 1, 1997.