Cite as Aake v. Mori,16 FSM Intrm. 607 (Chk. 2009)

[16 FSM Intrm. 607]

CIVIL ACTION NO. 2008-1087

Decided: November 2, 2009

APPEARANCES:

HEADNOTES

Judgments – Relief from Judgment

Rule 60(b) requires that the movant explain why the seven-month lapse between the dismissal of his case and the motion for relief constitutes a reasonable time within which to make the motion for relief from judgment. Aake v. Mori, 16 FSM Intrm. 607, 608 (Chk. 2009).

Public Officers and Employees – Chuuk

The court can find no provision in the public service system regulations that precludes a former state public service system employee from pursuing a grievance that arose during the state employee's period of employment through the public service system administrative grievance procedure even though the aggrieved party is no longer a public service system employee. Indeed, if the grievance

[16 FSM Intrm. 608]

involved termination, the regulations specifically provide for it. Aake v. Mori, 16 FSM Intrm. 607, 609 (Chk. 2009).

Public Officers and Employees – Chuuk

It would seem incongruous, if a public service system employee could avoid the administrative grievance procedure and have an immediate right to resort to court action merely by retiring, resigning, or otherwise leaving public service system employment (especially if a grievance were pending at the time the employee left the public service system). A former state employee may still pursue a grievance through the public service system administrative procedure if the grievance arose while the former employee was a member of the public service system. Aake v. Mori, 16 FSM Intrm. 607, 609 (Chk. 2009).

Judgments – Relief from Judgment

When the dismissal for failure to exhaust administrative remedies was without prejudice to any later court action after administrative relief had been sought, granting relief from the dismissal would not be in the interest of justice, and any future litigation would be conducted on a new and accurate pleadings. Aake v. Mori, 16 FSM Intrm. 607, 609 (Chk. 2009).

COURT'S OPINION

READY E. JOHNNY, Associate Justice:

On February 25, 2009, the court dismissed this case because the plaintiff, Taisen Aake, who was seeking judgment for unpaid back wages for holiday work, overtime, and night shift work differential pay he alleged was owed him as a Chuuk state public service system employee, had failed to exhaust his administrative remedies before resorting to court action and that therefore the court lacked jurisdiction over the matter. On October 2, 2009, Aake filed his Motion to Set Aside Order of Dismissal. The defendants filed their opposition on October 12, 2009.

Aake moves, under Civil Procedure Rule 60(b), for relief from the February 25, 2009 dismissal order on the ground that when his case was filed he was no longer a Chuuk Public Service System employee. Aake contends that, since he was not a public service system member, he could not have pursued any administrative remedies.

Aake does not explain, as required by Rule 60(b), why the seven-month lapse between the dismissal and the motion for relief constitutes, as required by Rule 60(b), is a reasonable time within which to make the motion. Nor does Aake identify which subsection of Rule 60(b) applies to his motion.

None of the first five subsections appears applicable to Aake's asserted ground. Subsection six, which permits relief for "any other reason justifying relief from the operation of the judgment," is presumably the applicable subsection.

Aake asserts that, because he is no longer a public service system employee, he is unable to pursue administrative remedies for the back wages he claims are owed him. He has not directed the court's attention to any Chuuk state statute or regulation that specifically requires that result, but instead relies on general statements in the Public Service System Regulations that those regulations and grievance procedures apply to all public service system employees. He reasons that, since he is no longer a state public service system employee, he either cannot, or does not have to, use the public

[16 FSM Intrm. 609]

service system grievance procedure to assert his back wages claim.

The court can find no provision in the public service system regulations that precludes a former state public service system employee from pursuing a grievance that arose during the state employee's period of employment through the public service system administrative grievance procedure even though the aggrieved party is no longer a public service system employee. Indeed, if the grievance involved termination, the regulations specifically provide for it. See Truk Pub. Serv. Regs. pt. III, subpts. E and F.

It would seem incongruous, if a public service system employee could avoid the administrative grievance procedure and have an immediate right to resort to court action merely by retiring, resigning, or otherwise leaving public service system employment (especially, which is not alleged here, if a grievance were pending at the time the employee left the public service system). The court concludes that a former state employee may still pursue a grievance through the public service system administrative procedure if the grievance arose while the former employee was a member of the public service system.

Lastly, the ground for Aake's motion is contrary to his pleadings. This is problematic. He alleges in his September 18, 2008 complaint that he "is a regular full time employee of the State of Chuuk." Complaint ¶ 6. He now alleges that he was not a state employee on September 18, 2008. (Nor did his complaint allege that pursuing administrative remedies would be futile.) If relief from judgment were granted, Aake would need to amend his complaint in order to proceed. Since the February 25, 2009 dismissal was without prejudice to any later court action after administrative relief had been sought, granting relief from the February 25, 2009 dismissal would not be in the interest of justice. Any future litigation should be conducted on a new and

Accordingly, Taisen Aake's motion to set aside the February 25, 2009 judgment is denied.