FSM SUPREME COURT TRIAL DIVISION
Cite as Cuipan v. Pohnpei Foreign Inv. Bd.
12 FSM Intrm. 184 (Pon. 2003)

[12 FSM Intrm. 184]

ELIZABETH CUIPAN d/b/a POHNPEI FLOWERS
AND SPICES, INC.,
Plaintiff,
 
vs.
 
POHNPEI FOREIGN INVESTMENT BOARD (FIB),
FIB Chairman Carlos Villazon, and FIB Members
Linus Edward, Steve Hellan, Francisco Simeon
and Marcelo Peterson,
Defendants.
 
CIVIL ACTION NO. 2003-022
 
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
 
Andon L. Amaraich
Chief Justice
 
Decided: October 15, 2003

APPEARANCES:

For the Plaintiff:                   Elizabeth Ciupan, pro se
                                             P.O. Box 1240
                                             Kolonia, Pohnpei FM 96941
 
For the Defendants:           Marstella Jack, Esq.
                                            Assistant Attorney General
                                            Pohnpei Department of Justice
                                            P.O. Box 1555
                                            Kolonia, Pohnpei FM 96941
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HEADNOTES

Administrative Law ) Judicial Review; Civil Procedure ) Parties
     When a plaintiff files a lawsuit against a Pohnpei state employee or public officer arising out of an act or omission within the scope of his or her public duties or employment either in his or her official capacity or as an individual, and that lawsuit alleges any tort, tax or contract claims, claims for injuries or damages, or actions which seek injunctive relief or writ of mandamus, the state itself must also be named as a defendant, but in an appeal from an administrative agency decision, the plaintiff is permitted, but not required, to name the state as a party to the action. Cuipan v. Pohnpei Foreign Inv. Bd., 12 FSM Intrm. 184, 185 (Pon. 2003).
 
Administrative Law ) Judicial Review; Statutes of Limitation
     When the Pohnpei Foreign Investment Board’s letter states that the plaintiff is ordered to cease

[12 FSM Intrm.185]

and desist from engaging in business and must surrender her Foreign Investment Permit, the clear implication of the Board’s letter is that its revocation decision is effective immediately with no indication that those "orders" would take effect only at the expiration of a 20-day period. Thus, having failed to inform plaintiff of the 20-day waiting period, and having improperly indicated that its revocation decision was immediately effective, the Board cannot rely on the 20-day statutory period to appeal as a basis for dismissing this appeal. To the extent that it functions as a statute of limitation, it begins to run when a permit holder is notified of a Board decision and informed that the decision will become effective in 20 days if not appealed. Cuipan v. Pohnpei Foreign Inv. Bd., 12 FSM Intrm. 184, 186 (Pon. 2003).

* * * *

COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

     This is an appeal from a decision by the state of Pohnpei’s Foreign Investment Board (FIB) to revoke plaintiff’s foreign investment permit.

     On September 3, 2003, this case was removed from the Pohnpei Supreme Court to this Court by plaintiff’s petition pursuant to General Court Order 1992-2, § II(D).

     On September 19, 2003, defendants filed a Motion to Dismiss, alleging that plaintiff had impermissibly failed to name the Pohnpei State Government as a party to this action and that plaintiff’s appeal was not filed within the 20-day time period prescribed by state law. For the reasons that follow, the Court finds neither allegation to be sufficient grounds for dismissal.

     Pohnpei State Law No. 2L-192-91, § 8 (1) provides: "No action arising out of an act or omission within the scope of his or her public duties or employment may be brought against any employee, either in his or her official capacity or as an individual, unless the state is named as party defendant under this Act." Id. (emphasis supplied). However, that provision is qualified by section 4 of the same statute, which limits actions against the state to those which allege tort, tax or contract claims, claims for injuries or damages, and actions which seek injunctive relief or writ of mandamus. Pon. S.L. No. 2L-192-91, § 4. Thus, when a plaintiff files a lawsuit against a public officer or employee of the state, and that lawsuit alleges any of the claims listed in section 4, section 8 requires that the state itself must also be named as a defendant.

     By contrast, the present action is an appeal from an administrative decision. The statute that is relevant to such actions is Pon. S.L. No. 3L-99-95. Section 14-2 of that statute provides:

A person suffering legal wrong because of agency action within the meaning of a relevant statute, is entitled to judicial review thereof by the Trial Division of the Pohnpei Supreme Court. Such action before the Trial Division may seek relief in addition to or other than monetary damages and may state a claim that an agency or an officer or employee thereof acted unlawfully . . . . The Pohnpei Government may be named as a defendant in any such action.

Id. (emphasis supplied). Thus, under Pon. S.L. No. 3L-99-95, § 14-2, plaintiff was permitted but not required to name the State of Pohnpei as a party to this action.

     Turning to the question of timeliness, the relevant statute provides that when FIB revokes a

[12 FSM Intrm. 186]

foreign investment permit,

the Board shall notify the holder of said permit . . . in writing, of the decision of the Board and reasons for the action. Action of the Board may be appealed to a court of competent jurisdiction within twenty days following receipt by the permit holder . . . of notification of the action so taken by the Board . . . ."

Pon. S.L. No. 1L-85-86, § 13(2). The record shows that FIB revoked plaintiff’s permit by letter opinion on April 16, 2003, and that plaintiff received a copy of that letter on the same day.1 Plaintiff filed her appeal thirty days later, on May 16, 2003.

     Plaintiff argues that the letter she received on April 16, 2003, did not constitute proper notice because it failed to inform her that the Board’s decision to revoke her foreign investment permit would not "take effect until the expiration of twenty days following receipt of said notification by the permit holder." Pon. S.L. No. 1L-85-86, § 13(2).

     Plaintiff is correct. There appears to be no dispute that the Board met its requirement to notify plaintiff, in writing, of its decision to revoke her permit and the reasons for that decision.2 However, the Board’s letter states that plaintiff is "ordered to cease and desist from engaging in business in Pohnpei State. It is hereby further ordered that [plaintiff] surrendered [sic] the Foreign Investment Permit." The clear implication of the Board’s letter is that its revocation decision is effective immediately. Plaintiff was ordered to stop doing business and surrender her permit, with no indication that those "orders" would take effect only at the expiration of a 20-day period.

    Having failed to inform plaintiff of the 20-day waiting period, and having   improperly indicated that its revocation decision was immediately effective, the Board cannot now rely on the 20-day period as a basis for dismissing this appeal. To the extent that Pon. S.L. No. 1L-85-86 (13)(2) functions as a statute of limitation, it begins to run when a permit holder is notified of a Board decision and informed that the decision will become effective in 20 days if not appealed. Accordingly, under the facts of this case, the statute has not begun to run. Cf. Alep v. United States, 7 FSM Intrm. 494, 499 (App. 1996) (improper conduct by defendant may create a basis for equitable tolling of statutes of limitation).

* * * *

______________________________

Footnotes:

1. At the bottom of the letter, there is a typed section for the recipient to acknowledge having received the Board’s letter. It reads: "Receipt Acknowledged: __________ Print Name _________ Signature _______ Date. Each of the blanks has been completed in handwriting. The printed name is "Elizabeth O. Ciupan," the signature is indecipherable, and the date is "04/16/2003."

2. Plaintiff also argues that the Board was required under the due process protections of the Constitution to inform her that she had the right to appeal the decision within 20 days. Because this matter is resolved on other grounds, it is not necessary for the Court to reach the Constitutional question.