FSM SUPREME COURT TRIAL DIVISION
Cite as Clarence v. FSM Social Sec. Admin.
12 FSM Intrm. 635 (Kos. 2004)

[12 FSM Intrm. 635]

JOHN CLARENCE,
Plaintiff,
 
vs.
 
FSM SOCIAL SECURITY ADMINISTRATION,
Defendant.
 
CIVIL ACTION NO. 2003-2008
 
ORDER
 
Martin Yinug
Associate Justice
 
Decided: September 22, 2004

APPEARANCES:

For the Plaintiff:               Sasaki L. George, Esq.
                                         Micronesian Legal Services Corporation
                                         P.O. Box 38
                                         Lelu, Kosrae FM 96944
 
For the Defendant:          Michael J. Sipos, Esq.
                                         P.O. Box 2069
                                         Kolonia, Pohnpei FM 96941

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[12 FSM Intrm. 636]

HEADNOTES

Administrative Law ) Judicial Review; Social Security
     An appeal from a Social Security Board decision will be determined on the record below and not on a trial de novo because, under 53 F.S.M.C. 708, the Board must certify and file in court a copy of the record. The Board’s findings as to the facts, if supported by competent, material, and substantial evidence, will be conclusive. If either party applies for leave to adduce additional material evidence, and shows to the court’s satisfaction that there were reasonable grounds for failure to adduce the evidence in the hearing before the Board or its authorized representatives and that such evidence is competent, material, and substantial, the court may order the Board to take the additional evidence to be adduced upon the hearing in such manner and upon such conditions as the court considers proper. Clarence v. FSM Social Sec. Admin., 12 FSM Intrm. 635, 636 (Kos. 2004).
 
Civil Procedure ) Motions
     Even when a party toward whom a motion is directed does not respond, there must be a good basis in law and fact for the granting of the motion. Clarence v. FSM Social Sec. Admin., 12 FSM Intrm. 635, 637 (Kos. 2004).
 
Administrative Law ) Judicial Review; Social Security
     By failing to respond to Social Security’s motion in limine that seeks to preclude the plaintiff from adducing any further evidence on appeal beyond that which is part of the record of proceedings before the Social Security Board, the plaintiff has not shown that there were reasonable grounds for failure to adduce competent, material, and substantial evidence before the Board and that this evidence should be (but is not) part of the record of the proceedings, and thus the motion will be granted. Clarence v. FSM Social Sec. Admin., 12 FSM Intrm. 635, 637 (Kos. 2004).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

     This matter is before the court on a petition for review of an order of the Board of the FSM Social Security Administration ("FSMSSA"), which was issued on or about October 21, 2003. On August 31, 2004, the FSMSSA filed a motion in limine in which it seeks to preclude the plaintiff John Clarence ("Clarence") from adducing any further evidence on appeal beyond that which is now part of the record of proceedings before the FSMSSA Board. Specifically, the FSMSSA asks that this appeal be determined on the record below, and not on the basis of a trial de novo. Good cause appearing, the motion is granted in accordance with the further terms of this order as set out below.

     In its motion, the FSMSSA cites 53 F.S.M.C. 708, which provides in pertinent part that

the Board shall certify and file in court a copy of the record upon which the order was entered. The findings of the Board as to the facts, if supported by competent, material, and substantial evidence, shall be conclusive. If either party applies to the court for leave to adduce additional material evidence, and shows to the satisfaction of the court that there were reasonable grounds for failure to adduce the evidence in the hearing before the Board or its authorized representatives, and that such evidence is competent, material, and substantial, the court may order the additional evidence to be taken by the Board and to be adduced upon the hearing in such manner and upon such conditions as the court considers proper.

[12 FSM Intrm. 637]

The record in this matter was filed on August 31, 2004. Clarence did not respond to the FSMSSA’s motion. However, even when a party toward whom a motion is directed does not respond, there must be a good basis in law and fact for the granting of the motion. Island Cable TV v. Gilmete, 9 FSM Intrm. 264, 266 (Pon. 1999). The record before the FSMSSA that has been filed with the court is reasonably extensive and detailed. By failing to respond to the FSMSSA’s motion, Clarence has not shown that there were reasonable grounds for failure to adduce competent, material, and substantial evidence before the Board, and that this evidence should be, but is not, part of the record of the proceedings before FSMSSA. Accordingly, the FSMSSA’s motion is granted. The appeal will be determined on the record of the proceedings before the FSMSSA Board filed on August 31, 2004.

     The question remaining is whether the Board’s decision was supported by the record. Clarence will brief this issue on or before October 5, 2004. The FSMSSA will respond on or before October 25, 2004. The court will consider the briefs, and will then enter judgment upon the record as provided by 53 F.S.M.C. 708.

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