FSM SUPREME COURT TRIAL DIVISION

Cite as Robert v. Simina, 14 FSM Intrm. 438 (Chk. 2006)

[14 FSM Intrm. 438]

PECKY ROBERT, SETIKAN ATEN, ANN MOSES,

WALTER TIM, SAMARI SUDA, HERRY NAKA,

and BENITO PETRUS,

Plaintiffs,

vs.

WESLEY SIMINA, in his official capacity as

Governor of Chuuk, AUGUSTIN TAKASHY, in his

official capacity as Acting Chief Division of

Personnel, WILIPINAT BISALEN, in his capacity as

Acting Director of Department of Administrative

Services, and STATE OF CHUUK,

Defendants.

CIVIL ACTION NO. 2005-1010

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Dennis K. Yamase

Associate Justice

Trial: July 21, 24-26, 2006

Decided: October 12, 2006

APPEARANCES:

For the Plaintiffs:  Camillo Noket, Esq.

                               Directing Attorney

                               Micronesian Legal Services Corporation

                               P.O. Box D

                               Weno, Chuuk  FM  96942

For the Defendants:  Joses Gallen, Esq.

                                    Acting Attorney General

                                    Office of the Chuuk Attorney General

                                    P.O. Box 189

                                    Weno, Chuuk  FM  96942

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[14 FSM Intrm. 439]

HEADNOTES

Public Officers and Employees ) Chuuk

    When plaintiffs sue the state for wrongful termination, the proper issue is whether the plaintiffs have shown a legal entitlement to permanent employment under the Truk State Public Service System Act. But when none of the proper procedures were followed to hire any of the plaintiffs before (or after) the Governor appointed them to fill the permanent chief positions; when no competitive process was involved when the plaintiffs became chiefs, none of the plaintiffs have shown a legal entitlement to permanent employment under the Truk State Public Service System Act. Robert v. Simina, 14 FSM Intrm. 438, 442 (Chk. 2006).

Public Officers and Employees ) Chuuk

    The Truk Public Service System Regulation that allows persons whose public service system positions have been abolished by a reduction in force to be reassigned, without the loss of permanent status, to another vacant public service position for which they are qualified applies only to persons who held permanent public service system positions before their positions were abolished. It does not apply to political appointees whose exempt advice-and-consent positions are abolished by the Legislature. Robert v. Simina, 14 FSM Intrm. 438, 443 (Chk. 2006).

Public Officers and Employees ) Chuuk

    Even when a reduction in force of the public service system is necessary, a competitive process is mandated to assure equitable competition, recognition of merit, and the public interest. Robert v. Simina, 14 FSM Intrm. 438, 443 (Chk. 2006).

Public Officers and Employees ) Chuuk

    When, even though discharged state employees held their position without legal entitlement, they are entitled to compensation for any work done for which they were not paid. Robert v. Simina, 14 FSM Intrm. 438, 443 (Chk. 2006).

Civil Rights; Public Officers and Employees ) Chuuk

    An employee of a state or local government who is discharged in violation of the civil rights statutes has a duty to actively look for and accept any reasonable offer of employment, otherwise back pay damages cannot be awarded. Robert v. Simina, 14 FSM Intrm. 438, 443 (Chk. 2006).

Civil Rights

    Since the FSM civil rights statute is based upon the United States model, the FSM Supreme Court should consider United States jurisprudence under 42 U.S.C. § 1983 and § 1988 for assistance in determining the intended meaning of, and governmental liability under 11 F.S.M.C. 701(3). Robert v. Simina, 14 FSM Intrm. 438, 443 n.1 (Chk. 2006).

Employer-Employee; Public Officers and Employees; Torts ) Damages; Torts ) Wrongful Discharge

    When an employer has unlawfully discharged an employee in violation of his civil rights and the former employee obtains alternative employment, in calculating damages, the income from the alternative employment will be deducted from the back pay owed to the employee, since otherwise the plaintiff could recover a windfall, which would violate the principles of compensatory damages. Robert v. Simina, 14 FSM Intrm. 438, 443 (Chk. 2006).

Civil Rights; Torts ) Infliction of Emotional Distress

    When there was no evidence of physical injury to any plaintiff or of any physical manifestation of emotional distress by any plaintiff, there can be no award of damages for pain and suffering even if the plaintiffs had proven they had been wrongfully discharged in violation of their civil rights. Robert

[14 FSM Intrm. 440]

v. Simina, 14 FSM Intrm. 438, 443 (Chk. 2006).

Civil Rights; Constitutional Law ) Due Process; Public Officers and Employees ) Chuuk

    In order to recover compensatory damages, the plaintiffs must prove actual injury from the civil rights deprivation. When, if proper procedure had been followed, the plaintiffs still would have been terminated from their positions, there is no actual injury to compensate with back pay or other benefits. Nominal damages may, however, be awarded for the deprivation of the important right to procedural due process. Robert v. Simina, 14 FSM Intrm. 438, 444 (Chk. 2006).

Civil Rights; Constitutional Law ) Due Process; Torts ) Damages

    Common-law courts traditionally have vindicated deprivations of certain "absolute" rights that are not shown to have caused actual injury through the award of a nominal sum of money. By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivation of rights. Because the right to procedural due process is "absolute" in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed, the denial of due process should be actionable for nominal damages without proof of actual injury. Robert v. Simina, 14 FSM Intrm. 438, 444 (Chk. 2006).

Torts ) Damages

Nominal damages are usually one dollar. Robert v. Simina, 14 FSM Intrm. 438, 444 n.3 (Chk. 2006).

Attorneys’ Fees; Civil Rights

    A plaintiff who is awarded nominal damages is a prevailing party. As prevailing parties in a civil rights action, the plaintiffs are entitled to their fees and costs. Robert v. Simina, 14 FSM Intrm. 438, 444 (Chk. 2006).

Public Officers and Employees ) Chuuk

    There is no authority, precedent, or principle of law that would require the state to obtain judicial approval before terminating an employee. Robert v. Simina, 14 FSM Intrm. 438, 445 (Chk. 2006).

Public Officers and Employees ) Chuuk

    The public and the state are the losers and public policy is violated when the public service system procedures, which are designed to obtain the best qualified public employees, are not followed. Robert v. Simina, 14 FSM Intrm. 438, 445 (Chk. 2006).

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 COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

     The plaintiffs in this consolidated civil action brought suit under the FSM civil rights statute, 11 F.S.M.C. 701(3), asserting that their civil rights had been violated because they were deprived of their property ) their permanent employment positions under the Chuuk Public Service System ) without due process of law. Each individual complaint seeks that plaintiff’s reinstatement in his or her former position; an award of back pay retroactive to the date of termination; further unspecified compensatory

[14 FSM Intrm. 441]

damages of $10,000; pain and suffering damages of $5,000; court costs; and such further relief as the court deems just and proper. On May 31, 2006, the five plaintiffs then consolidated in this civil action were granted partial summary judgment that, as a matter of law, chiefs of divisions within the Chuuk state government executive branch are public service positions and are not subject to gubernatorial nomination and senatorial advice and consent. Robert v. Simina, 14 FSM Intrm. 257, 261 (Chk. 2006).

     Trial was then set for the remaining issues: 1) whether the plaintiffs were hired for those public service positions in a lawful manner and 2) whether they received the requisite notice and opportunity to be heard when terminated from those positions.

    On July 4, 2006, Civil Actions No. 2005-1021 and 2005-1022 (plaintiffs Herry Naka and Benito Petrus respectively) were consolidated with this case by the parties’ stipulation and court order. When the case was called on July 19, 2006, the court heard preliminary matters. Defense counsel pointed out that, although the partial summary judgment in consolidated Civil Action No. 2005-1010 did not include plaintiffs Naka and Petrus, counsel had stipulated in their joint pretrial statement that when they were terminated neither were principal officers and advisors subject to senatorial confirmation.

    Trial was held on July 21, 24-26, 2006. The court heard testimony from Evelyn Paul Martin, Bernes Reslap, Augustin Takashy, Sisilio Willy, Willy (W-3) Wiliander, Samari Suda, Pecky Robert, Walter Tim, Ann Moses, Herry Naka, and Benito Petrus. Based on the evidence and testimony presented and the facts determined by the court’s partial summary judgment not to be genuinely in dispute, the court makes the following

Findings of Fact.

   1.  On October 23, 2003, Chuuk State Law No. 7-03-05 (Reorganization Act) reorganized the state government executive branch, reducing the fourteen executive departments (called either a department or an office) to eight. Former departments, which had been headed by Directors, became divisions within departments, headed by Chiefs.

   2.  After the Reorganization Act took effect,

   a.  The Office of Budget (Director Pecky Robert) became the Division of Budget within the newly-created Department of Administrative Services and Robert became the chief of that division;

   b.  The Department of Planning and Statistics (Director Samari Suda) became the Division of Planning and Statistics within the Department of Administrative Services and Suda became the chief of that division;

   c.  The Department of Treasury (Deputy Director Ann Moses) became the Division of Treasury within the Department of Administrative Services and Moses became the chief of that division;

   d.  The Department of Commerce and Industry (Director Walter Tim) became the Division of Commerce and Industry within the Department of Administrative Services and Tim became the chief of that division;

   e.  The Department of Public Works (Assistant Chief Setikan Aten) became the Division of Public Works within the Department of Public Works and Transportation and Aten became chief of that division; (since the parties have stipulated that all plaintiffs had held advice and consent positions before they took up their positions as chiefs, the court can only infer that Aten was a Deputy

[14 FSM Intrm. 442]

   Director of Public Works before he became the Assistant Chief of the Division of Public Works after the executive branch reorganization and was later promoted to Acting Chief);

   f.  Special Assistant to the Governor for Youth Affairs (Herry Naka) was transferred to the Division of Public Affairs as Acting Assistant Chief after the Department of Public Affairs became the Division of Public Affairs within the Department of Administrative Services; and

   g.  The Department of Transportation (Deputy Director Benito Petrus) became the Division of Transportation Sea and Air within the Department of Public Works and Transportation and Petrus became the chief of that division.

   3.  Before reorganization, the plaintiffs held positions (as listed above) that required gubernatorial appointment and the Chuuk Senate’s advice and consent. After reorganization, they became chiefs of divisions, which were civil service positions with somewhat lower pay but with benefits.

   4.  None of the newly-created positions as chiefs of divisions were advertised as open and none were subjected to the recruitment process. No competitive or non-competitive examinations were held. No eligible lists were created for any of these chief positions. None of the positions were filled through the statutory and regulatory recruitment process.

   5.  The then Governor Ansito Walter appointed each of the plaintiffs to those chief positions.

   6.  For each plaintiff, a termination personnel action for that plaintiff’s advice-and-consent position was executed for one day and a personnel action effecting a provisional appointment under the public service system executed for the next day, followed by a personnel action three months later changing the chief’s status from provisional to permanent public service system employment.

   7.  After the current administration took office, each plaintiff was terminated from his or her respective chief position on April 18, or 19, 2005. Most plaintiffs learned that they were terminated when the new administration’s nominees for their chief positions showed up for work in the chief’s offices on the first day of the new administration. No formal notice of termination was given at that time.

   8.  The then Acting Chuuk Attorney General issued a written opinion, dated April 28, 2005, that the chief positions (that the plaintiffs had held) had remained advice and consent positions whose occupants served at the Governor’s pleasure because, in his view, despite the executive branch reorganization, those positions remained principal officers of government. This opinion was attached to each plaintiff’s termination action, which the plaintiffs received in late April or early May.

   9.  There was no evidence any plaintiff was physically injured or suffered physical manifestation of emotional distress as a result of his or her termination.

     Based upon these findings, the court makes the following

Conclusions of Law.

   1.  The proper issue is whether the plaintiffs have shown a legal entitlement to permanent employment under the Truk State Public Service System Act. Hauk v. Terravecchia, 8 FSM Intrm. 394, 396 (Chk. 1998).

2.  None of the proper procedures were followed to hire any of the plaintiffs before (or after)

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Governor Walter appointed them to fill the permanent chief positions.

   3.  Part III.C.3 of the Public Service System Regulations allows persons whose public service system positions have been abolished by a reduction in force to be reassigned, without the loss of permanent status, to another vacant public service position for which they are qualified. This regulation applies only to persons who held permanent public service system positions before their positions were abolished. It does not apply to political appointees whose exempt advice-and-consent positions are abolished by the Legislature. It thus does not apply to the plaintiffs since their former, abolished positions were not public service system positions, but were exempt advice-and-consent positions. Even when a reduction in force of the public service system is necessary, a competitive process is mandated "to assure equitable competition, recognition of merit, and the public interest." Truk Pub. Serv. Sys. Reg. pt. III.3.C.b.

   4.  No competitive process was involved when the plaintiffs became chiefs.

   5.  Thus none of the plaintiffs have shown a legal entitlement to permanent employment under the Truk State Public Service System Act. Granting of permanent employment without advertisement, examination (if required) and the preparation of a eligible list by the Personnel Officer violates the Truk State Public Service System Act. Hauk, 8 FSM Intrm. at 396.

   6.  The plaintiffs, even though they held their position without legal entitlement, are entitled to compensation for any work done for which they were not paid. Falcam v. FSM, 3 FSM Intrm. 194, 200-03 (Pon. 1987), aff’d, 9 FSM Intrm. 1, 5 (App. 1999). The plaintiffs did not represent that they had performed work for which they were not paid and no evidence to that effect was presented.

   7.  Even if the plaintiffs had proven that they were entitled to permanent employment, not all of them would have been entitled to an award of back pay. Not all of the plaintiffs produced evidence that they had attempted to mitigate their damages. "[A]n employee of a state or local government who is discharged in violation of the civil rights statutes has a duty to actively look for and accept any reasonable offer of employment," 2 Civil Actions Against State and Local Government § 13.25, at 408 (Jon L. Craig ed., 2d ed. 1992), otherwise back pay damages cannot be awarded. E.g., Johnson v. Chapel Hill Ind. Sch. Dist., 853 F.2d 375, 383 (5th Cir. 1988); Jackson v. Wheatley Sch. Dist. No. 28, 464 F.2d 411, 413 (8th Cir. 1972). When an employer has unlawfully discharged an employee in violation of his civil rights and the former employee obtains alternative employment, in calculating damages, the income from the alternative employment will be deducted from the back pay owed to the employee, see, e.g., Welbern v. Hunt, 929 F.2d 1341, 1343 (8th Cir. 1991); Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1045-46 (1st Cir. 1988); Murphy v. City of Flager Beach, 846 F.2d 1306, 1308-09 (11th Cir. 1988), "since otherwise the plaintiff could recover a windfall, which would violate the principles of compensatory damages." 2 Civil Actions Against State and Local Government § 13.25, at 409; see also Wulf v. City of Wichita, 883 F.2d 842, 870-71 (10th Cir. 1989); cf. Blum v. Witco Chemical Corp., 829 F.2d 367, 374 (3d Cir. 1987).

   8.  Since there was no evidence of physical injury to any plaintiff or of any physical manifestation of emotional distress by any plaintiff, there could be no award of damages for pain and suffering even if the plaintiffs had proven they had been wrongfully discharged in violation of their civil rights. Narruhn

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v. Aisek, 13 FSM Intrm. 97, 99 (Chk. S. Ct. App. 2004).

   9.  In Falcam, the appellate court, in dicta, concluded that the facts of the case were sufficient to establish a constitutionally-protected interest, namely, that the FSM Secretary of Finance had to give notice and an opportunity to be heard after taking the action to withhold Falcam’s pay, and that the government had to terminate Falcam’s employment after it determined his hiring had violated public policy, and then give Falcam notice and an opportunity to be heard and that failure to take such steps violated Falcam’s due process rights. FSM v. Falcam, 9 FSM Intrm. 1, 5 (App. 1999). In this case, the plaintiffs were not hired through the normal personnel procedures. The plaintiffs in this case were deprived only of their procedural rights to notice and an opportunity to be heard although most plaintiffs were provided with formal notice afterward when they received their personnel termination actions.

   10.  In order to recover compensatory damages, the plaintiffs must prove actual injury from the civil rights deprivation. Carey v. Piphus, 435 U.S. 247, 258-66, 98 S. Ct. 1042, 1049-53, 55 L. Ed. 2d 252, 261-66 (1978); Laje v. R.E. Thomason Gen’l Hosp., 665 F.2d 724, 729-30 (5th Cir. 1982); Kendall v. Board of Educ., 627 F.2d 1, 6 (6th Cir. 1980). If proper procedure had been followed, the plaintiffs still would have been terminated from their chief positions. There is thus no actual injury to compensate with back pay or other benefits. Nominal damages may, however, be awarded for this deprivation of the important right to procedural due process. Memphis Sch. Dist. v. Stachura, 477 U.S. 299, 310, S. Ct. 2537, 2544, 91 L. Ed. 2d 249, 261 (1986) (abstract value of a constitutional right cannot serve as basis for a compensatory damage award in a civil rights case); Carey, 435 U.S. at 266-67, 98 S. Ct. at 1054, 55 L. Ed. 2d at 266-67; Rogers v. Kelly, 674 F. Supp. 1372, 1374 (E.D. Ark. 1987), aff’d, 866 F.2d 997, 1000 (8th Cir. 1989).

Common-law courts traditionally have vindicated deprivations of certain "absolute" rights that are not shown to have caused actual injury through the award of a nominal sum of money. By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivation of rights.

Because the right to procedural due process is "absolute" in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed, . . . the denial of due process should be actionable for nominal damages without proof of actual injury.

Carey, 435 U.S. at 266, 98 S. Ct. at 1053-54, 55 L. Ed. 2d at 266-67 (footnote and citations omitted). The plaintiffs are therefore awarded nominal damages of one dollar each. A plaintiff who is awarded nominal damages is a prevailing party. As prevailing parties in a civil rights action, the plaintiffs are entitled to their fees and costs. 11 F.S.M.C. 701(3); see e.g., Schneider v. Colegio de Abogados, 947 F. Supp. 34, 42 (D.P.R. 1996) (fees and costs awarded when plaintiffs awarded $1 each in civil rights

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case). The plaintiffs have prayed for their costs of action but have not requested a fee award.

   11.  The plaintiffs also contend that the state could, and presumably should, have first gone to court to get a judicial determination that the plaintiffs were unlawfully hired before terminating them. The court knows of no, and the plaintiffs have cited no authority, precedent, or principle of law that would require the state to obtain judicial approval before terminating an employee.

   12.  The plaintiffs also contend that they are only victims here. They are not. They were transferred from political appointee positions which would have ended no later than when Governor Walter’s term expired in April 2005, to life-time public service system positions without being subjected to the recruitment and advertisement process. The public and the state are the losers and public policy is violated when the public service system procedures, which are designed to obtain the best qualified public employees, are not followed. If the positions had gone through the formal recruitment process, more qualified, or equally qualified but more suitable persons might have applied and someone other than the plaintiffs may have been hired. No one can be certain that any particular plaintiff would have held the chief position that he or she did hold if the proper procedures had been followed. The plaintiffs therefore had, up until their April 2005 termination, the benefit of employment (and income from that employment) that they otherwise may not have had.

     The plaintiffs, however, are not without any recourse or hope. The present administration will have to, at some point (it has not yet done so), advertise the plaintiffs’ former positions and go through the regular recruitment process to fill those positions. When it does, the plaintiffs will have the same opportunity as any other Chuuk citizen to apply for and obtain those positions.

Conclusion

      The plaintiffs have not proven that they had a legal entitlement to permanent employment under the Truk State Public Service System Act. The court therefore will not order that the plaintiffs be reinstated in their former positions or that they be awarded compensatory damages. Nominal damages will be awarded for the state’s failure to provide an opportunity to be heard. The seven plaintiffs are thus each awarded $1 and as prevailing parties, their costs of action, 11 F.S.M.C. 701(3); FSM Civ. R. 54(d). The plaintiffs shall, within ten days of entry of this order, file their bill of costs with the clerk who shall tax the costs on one day’s notice. FSM Civ. R. 54(d).

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Footnotes:

1.  Since the FSM civil rights statute is based upon the United States model, the FSM Supreme Court should consider United States jurisprudence under 42 U.S.C. § 1983 and § 1988 for assistance in determining the intended meaning of, and governmental liability under 11 F.S.M.C. 701(3). Estate of Mori v. Chuuk, 10 FSM Intrm. 6, 13 (Chk. 2001); Plais v. Panuelo, 5 FSM Intrm. 179, 204 (Pon. 1991).

2.  This is understandable because the new administration believed that the chief-plaintiffs held advice-and-consent positions and were terminated by operation of law and thus needed no notice or opportunity to be heard.

3.  Nominal damages are usually one dollar. Pohnpei v. AHPW, Inc., 14 FSM Intrm. 1, 25 n.8 (App. 2006).

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