FSM SUPREME COURT TRIAL DIVISION
Cite as Oliver v. Simina 24 FSM R. 142 (Pon. 2023)
NORLEEN OLIVER and MARK DEORIO,
Plaintiffs,
vs.
WESLEY SIMINA, in his capacity as the President
of the FSM, and the FSM GOVERNMENT,
Defendants.
CIVIL ACTION NO. 2022-036
ORDER REMANDING MATTER
Larry Wentworth
Associate Justice
Hearing: May 19, 2023
Decided: May 26, 2023
APPEARANCES:
For the Plaintiff:
Marstella E. Jack, Esq. (motion)
Enlet Jr. Enlet, Esq. (argued)
Law Office of Marstella E. Jack
P.O. Box 2210
Kolonia, Pohnpei FM 96941
For the Defendant:
Jeffrey S. Tilfas, Esq.
Assistant Attorney General
FSM Department of Justice
Palikir, Pohnpei FM 96941
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When terminated public service system employees, who have exhausted their administrative remedies, are aggrieved by the President's final decision and want judicial review of that final decision, the judicial review that they may seek is limited in nature because disciplinary actions not only are not subject to review in the courts until the administrative remedies have been exhausted but thereafter can also only be reviewed on the grounds of violation of law or regulation or of denial of due process or of equal protection of the laws. Oliver v. Simina, 24 FSM R. 142, 145 (Pon. 2023).
The Public Service System Act, by implication, requires decisions by unbiased persons, including the highest management official. Due process demands impartiality on the part of adjudicators, and this impartiality requirement surely applies to the highest management official, the President, acting under 52 F.S.M.C. 156, but the analysis begins with the presumption that the judicial or quasi-judicial official is unbiased. Oliver v. Simina, 24 FSM R. 142, 145 (Pon. 2023).
Under Rule 56, unless a court, viewing the facts and inferences in the light most favorable to the nonmoving party, finds that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law, the court must deny a summary judgment motion, and a plaintiff moving for summary judgment must not only show that there is no issue of material fact, but must also overcome all of the defendants' affirmative defenses by either establishing their legal insufficiency or disproving them. Oliver v. Simina, 24 FSM R. 142, 145-46 (Pon. 2023).
A non-justiciable political question only occurs when the Constitution has a textually demonstrable commitment of an issue to a coordinate branch of government. The Constitution does not commit review of public service system disciplinary decisions solely to the executive branch and a statute, 52 F.S.M.C. 157, authorizes the court, in limited instances, to judicially review such cases. Oliver v. Simina, 24 FSM R. 142, 146 (Pon. 2023).
"Satisfaction" is an affirmative defense that imports a release of an obligation, usually a claim or money debt, in reference to which it is given. It is the discharge of an obligation by paying a party what is due to him. Oliver v. Simina, 24 FSM R. 142, 146 (Pon. 2023).
"Unclean hands" is an equitable defense that can be used against actions in equity, but not in actions at law. Oliver v. Simina, 24 FSM R. 142, 146 (Pon. 2023).
The affirmative defense of laches has two elements – the passage of a nonspecific amount of time during which the plaintiff engages in inexcusable delay or lack of diligence in bringing suit, and resulting prejudice to the defendant, and, when, neither in their answer nor during the hearing, did the defendants assert that they had suffered any prejudice from the alleged delay and did not explain why the delay would inexcusable, the laches defense is overcome. Oliver v. Simina, 24 FSM R. 142, 146 (Pon. 2023).
While providing for limited judicial review of the highest management official's final decision, the statute, 52 F.S.M.C. 157, does not limit the time within which to seek that review. Neither does the general statute, 17 F.S.M.C. 111, permitting judicial review of administrative decisions. Oliver v. Simina, 24 FSM R. 142, 146 n.1 (Pon. 2023).
The court starts with the presumption that the decision-maker was unbiased. A decision-maker's disqualification is required only when the biasing influence is strong enough to overcome that presumption, that is, when the influence is so strong the court may presume actual bias. This occurs in situations where the probability of actual bias on the decision-maker's part is too high to be constitutionally tolerable. Oliver v. Simina, 24 FSM R. 142, 146 (Pon. 2023).
When the President's wife was personally in an adversarial position with the terminated public employees and the actions those public employees took that were the basis of their terminations were also directly related to that adversarial position and were taken with the intent to thwart the President's expressed intent to expeditiously move forward with an access road paving project, the President's conflicts (particularly those through his spouse) were thus personal and closely related to the termination appeals before him, and therefore it was a situation where the probability of actual bias on the decision-maker's part was too high to be constitutionally tolerable and actual bias must be presumed. Oliver v. Simina, 24 FSM R. 142, 147 (Pon. 2023).
When the President must be disqualified as a decision-maker in two termination appeals, his final decisions will be vacated, and, since a new President has taken office, the court will remand the matter to the new FSM President for him to make his 52 F.S.M.C. 156 final decision. Oliver v. Simina, 24 FSM R. 142, 147 (Pon. 2023).
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LARRY WENTWORTH, Associate Justice:
This case was filed as a Verified Complaint for Due Process Violation and Injunctive Relief on December 21, 2022. Under 52 F.S.M.C. 157, it is an appeal from, or judicial review of, an administrative decision by then FSM President David W. Panuelo, upholding the termination of Norleen Oliver and Mark DeOrio from national government employment. Since David W. Panuelo is no longer the FSM President, his successor in that office, Wesley Simina, was automatically substituted for him as a party defendant. FSM Civ. R. 25(d)(1).
The matter is remanded to the FSM President for further proceedings. The court's reasons follow.
On October 13, 2020, Mark DeOrio was served a notice of proposed termination from his employment at the FSM Department of Transportation, Communications and Infrastructure ("TC&I"), and, on October 16, 2020, Norleen Oliver was served a notice of proposed termination from her employment at the FSM Department of Health and Social Affairs. Both Oliver and DeOrio responded to their respective notices. Both were terminated. On November 30, 2020, each appealed their respective terminations through the Personnel Office.
As provided for in 52 F.S.M.C. 154, an ad hoc committee panel heard each petitioner's grievance. On April 20, 2021, each ad hoc committee panel issued its findings. These findings favored Oliver and DeOrio. The ad hoc committee panels recommended that Oliver and DeOrio each be reinstated with retroactive pay. These findings and recommendations were forwarded to President Panuelo for him to review and make the final decision. The law requires that the highest management official responsible for that government agency make the final decision on employee disciplinary appeals, 52 F.S.M.C. 156, and the President is considered the highest management official for the executive branch. See Suldan v. FSM (I), 1 FSM R. 201, 206 (Pon. 1982).
President Panuelo neglected or did not act on Oliver's and DeOrio's employment termination appeals. Oliver and DeOrio eventually petitioned the court for a writ of mandamus to compel the President to make a decision, and, after due consideration, the court granted the writ. Oliver v. Panuelo, 23 FSM R. 475, 478 (Pon. 2021). President Panuelo then reviewed the ad hoc committees' findings and recommendations concerning Oliver and DeOrio and on February 20, 2022, and rejected them.
Oliver and DeOrio then filed, in the writ of mandamus case, a Motion to Remand President Panuelo's Final Decision and Enter an Order for a New Final Decision to Be Issued by the New Vice President, in which they asked the court to remand the President's final decision to the executive branch for a new final decision to be made by the Vice President because the President had a conflict of interest and was therefore biased. That motion was denied on October 28, 2022, because the President's final decision was never present in the (successful) writ of mandamus action and so could not be "remanded" anywhere or any orders made concerning it because the court had no jurisdiction, in that case, to consider the new relief sought.
Oliver and DeOrio filed this action on December 21, 2022, alleging that President Panuelo denied them their constitutional rights to due process because due process entitled them to an unbiased decision-maker, and President Panuelo was not one. Oliver and DeOrio seek as relief that President Panuelo's final decision be set aside, that the matter be remanded to Vice President Aren Palik for him to make the final decision on the ad hoc committees' findings and recommendations, and that the national government be enjoined from hiring anyone to fill the positions that Oliver and DeOrio had held. (A preliminary injunction hearing was held on January 17, 2023, but no injunctive relief was granted.)
The defendants answered the complaint. They denied the allegations that Oliver and DeOrio had not received due process and asserted the affirmative defenses of 1) failure to state a claim; 2) lack of standing; 3) no civil rights violations; 4) failure to exhaust administrative remedies; 5) non-justiciable political question; 6) satisfaction; 7) laches; and 8) unclean hands.
Asserting that there were no material facts genuinely in dispute, Oliver and DeOrio now move for summary judgment. The defendants oppose. They assert that the issue of bias is a disputed material fact and the movants have not overcome the defendants' affirmative defenses.
When terminated public service system employees, who have exhausted their administrative remedies, are aggrieved by the President's final decision and want judicial review of that final decision, the judicial review that they may seek is limited in nature.
Disciplinary actions taken in conformance with this subchapter shall in no case be subject to review in the Courts until the administrative remedies prescribed herein have been exhausted; nor shall they be subject to such review thereafter except on the grounds of violation of law or regulation or of denial of due process or of equal protection of the laws.
52 F.S.M.C. 157.
Oliver and DeOrio contend that their due process rights were violated because a biased highest management official (President Panuelo) made the final decision in their administrative appeals. The Public Service System Act, "by implication, requires decisions by unbiased persons." Suldan v. FSM (II), 1 FSM R. 339, 362 (Pon. 1983). This includes the highest management official. "Unquestionably, due process demands impartiality on the part of adjudicators. This requirement of impartiality surely applies to the 'highest management official' [the President] acting under § 156. Analysis begins however with the presumption that the judicial or quasi-judicial official is unbiased." Id. (citation omitted).
A. Summary Judgment
Under Rule 56, unless a court, viewing the facts and inferences in the light most favorable to the nonmoving party, finds that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, the court must deny the motion. Mailo v. Chuuk Health Care Plan, 20 FSM R. 18, 22 (App. 2015). A plaintiff moving for summary judgment must not only show that there is no issue of material fact, but must also overcome all of the defendants' affirmative defenses by either establishing their legal insufficiency or disproving them. FSM Dev. Bank v. Carl, 22 FSM R. 365, 371 (Pon. 2019).
The defendants' filed opposition only mentioned their affirmative defenses in passing. During the oral argument, the movants addressed the defendants' affirmative defenses. Those defenses are insufficient as a matter of law and often wholly inapplicable. Oliver and DeOrio have obviously stated a claim and they have standing since they have exhausted their administrative remedies. The President's final decision was the last available administrative remedy. There are no more.
A non-justiciable political question only occurs when the Constitution has a textually demonstrable commitment of an issue to a coordinate branch of government. Pohnpei v. AHPW, Inc., 14 FSM R. 1, 16-17 (App. 2006); Aten v. National Election Comm'r (III), 6 FSM R. 143, 145 (App. 1993). The Constitution does not commit review of public service system disciplinary decisions solely to the executive branch and a statute, 52 F.S.M.C. 157, authorizes the court, in limited instances, to judicially review cases such as this. This defense is inapplicable.
"Satisfaction" is an affirmative defense that imports a release of an obligation, usually a claim or money debt, in reference to which it is given. See, e.g., Boca Ratone Co. v. Commissioner, 86 F.2d 9, 10-11 (3d Cir. 1936). It is "[t]he discharge of an obligation by paying a party what is due to him . . ." BLACK'S LAW DICTIONARY 1342 (6th ed. 1990). It is not an applicable defense in a situation such as this.
Unclean hands is also an inapplicable defense. It is an equitable defense that can be used against actions in equity, but not in actions at law, FSM Dev. Bank v. Salomon, 22 FSM R. 468, 477 (Pon. 2020), and this is an action at law authorized by statute.
Laches has two elements – the passage of a nonspecific amount of time during which the plaintiff engages in inexcusable delay or lack of diligence in bringing suit, and resulting prejudice to the defendant. AHPW, Inc., 14 FSM R. at 18. Neither in their answer nor during the hearing, did the defendants assert that they had suffered any prejudice from the alleged delay. Much of the delay may be attributed to the President's inaction. Nor did they explain why the delay1 would inexcusable. The laches defense is overcome.
And whether any civil rights were violated depends solely on whether, as a matter of law, there were any due process violations – whether there was a biased decision-maker. That is analyzed next.
B. Whether President Panuelo Was Disqualified
The court starts with the presumption that President Panuelo was an unbiased decision-maker. "Disqualification is required only when the biasing influence is strong enough to overcome that presumption, that is, when the influence is so strong [the court] may presume actual bias." Del Vecchio v. Illinois Dep't of Corrections, 31 F.3d 1363, 1375 (7th Cir. 1994). This occurs in situations where "the probability of actual bias on the part of the . . . decisionmaker is too high to be constitutionally tolerable." Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 1464, 43 L. Ed. 2d 712, 723 (1975). That is the situation in this case.
The following facts are not genuinely in dispute.
Norleen Oliver was terminated when she was criminally charged with civil rights violations and obstructing the administration of law or other governmental function because she allegedly blocked the access road to President Panuelo's wife's personal residence thereby impeding the First Lady's ability to go about her government business, all of which arose from a dispute over the access road, which crossed Oliver's family land, and the FSM government's supposed intention to pave that road without consulting or compensating the Oliver family. See FSM v. Oliver, 23 FSM R. 86 (Pon. 2020).2
Mark DeOrio, Oliver's husband, was terminated after he was charged with obstructing the administration of law or other governmental function; conflict of interest; theft; unauthorized possession or removal of property; and deprivation of civil rights because, after Oliver had written a letter to President Panuelo about the government road paving project on the access road, and, after he received it, President Panuelo wrote an instruction on it to move forward with the project and sent it to TC&I, where Deorio allegedly found it with the President's comment and took it and gave it to Oliver. See FSM v. DeOrio, 23 FSM R. 153 (Pon. 2021).3 DeOrio's giving the letter with the President's instructions to Oliver appears to have been the impetus for Oliver's actions blocking the access road so that construction equipment could not enter, thus giving rise to the charges against her.
Also stemming from these all events was an FSM Supreme Court civil suit by Oliver against President Panuelo and the FSM, and a Pohnpei Supreme Court civil suit by President Panuelo's wife against Oliver, with Oliver asserting counterclaims against President Panuelo's wife.
Thus, not only was President Panuelo's wife personally in an adversarial position with Oliver and DeOrio, but the actions Oliver and DeOrio took that were the basis of their terminations were also directly related to that adversarial position and were taken with the intent to thwart President Panuelo's expressed intent to expeditiously move forward with the access road paving project. President Panuelo's conflicts (particularly those through his spouse) were thus personal and closely related to the termination appeals before him.
The court therefore concludes that this is a situation where the probability of actual bias on the part of the decision-maker (President Panuelo) is too high to be constitutionally tolerable. Actual bias must be presumed. Oliver's and DeOrio's due process rights were thus violated. President Panuelo must be disqualified as a decision-maker in their termination appeals. His final decisions are hereby vacated. (The court takes no position on whether an unbiased decision-maker would reach the same final decision that President Panuelo did, or a different one.) Since a new FSM President has taken office, the court does not need to decide whether it has the authority to designate the Vice President or some other person as the "highest management official" for the purpose of Oliver's and DeOrio's appeals. President Simina will suffice.
Accordingly, this matter is remanded to the current FSM President for him to make his 52 F.S.M.C. 156 final decision. This case is closed.
_______________________________Footnotes:
1 Interestingly, the statute, while providing for limited judicial review of the highest management official's final decision, 52 F.S.M.C. 157, does not limit the time within which to seek that review. Neither does the general statute, 17 F.S.M.C. 111, permitting judicial review of administrative decisions.
2 The civil rights charge was dismissed, Oliver, 23 FSM R. at 90, and, although the obstruction charge was not dismissed, id.; FSM v. Oliver, 23 FSM R. 148 (Pon. 2021), Oliver was later acquitted of that charge.
3 The obstruction, conflict of interest, and civil rights charges were dismissed. DeOrio, 23 FSM R. at 157-60, 163-64. DeOrio was later acquitted of the theft charge but convicted on the unauthorized possession charge.
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